S.B. 86

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ADMINISTRATIVE RULES AMENDMENTS
2 1998 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Howard A. Stephenson
5 AN ACT RELATING TO STATE AFFAIRS IN GENERAL; AMENDING THE
6 ADMINISTRATIVE RULEMAKING ACT TO ALLOW FOR INCORPORATING
7 FEDERALLY-MANDATED STATE IMPLEMENTATION PLANS BY REFERENCE;
8 ALLOWING THE REAUTHORIZATION LEGISLATION TO SUNSET A SECTION OF A
9 RULE; REQUIRING THE COMMITTEE TO MEET ON A MONTHLY BASIS; CHANGING
10 THE STATUTE OF LIMITATIONS ON DIVISION NONSUBSTANTIVE CHANGES FROM
11 FOUR YEARS TO TWO YEARS; MAKING TECHNICAL CHANGES; AND PROVIDING
12 AN EFFECTIVE DATE.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 63-46a-3, as last amended by Chapter 60, Laws of Utah 1996
16 63-46a-9, as last amended by Chapter 375, Laws of Utah 1997
17 63-46a-11, as last amended by Chapter 33, Laws of Utah 1997
18 63-46a-11.5, as last amended by Chapter 2, Laws of Utah 1997, First Special Session
19 63-46a-14, as last amended by Chapter 60, Laws of Utah 1996
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 63-46a-3 is amended to read:
22 63-46a-3. When rulemaking is required.
23 (1) Each agency shall:
24 (a) maintain a complete copy of its current rules; and
25 (b) make it available to the public for inspection during its regular business hours.
26 (2) In addition to other rulemaking required by law, each agency shall make rules when
27 agency action:

1 (a) authorizes, requires, or prohibits an action;
2 (b) provides or prohibits a material benefit;
3 (c) applies to a class of persons or another agency; and
4 (d) is explicitly or implicitly authorized by statute.
5 (3) Rulemaking is also required when an agency issues a written interpretation of a state
6 or federal legal mandate.
7 (4) Rulemaking is not required when:
8 (a) agency action applies only to internal agency management, inmates or residents of a
9 state correctional, diagnostic, or detention facility, persons under state legal custody, patients
10 admitted to a state hospital, members of the state retirement system, or students enrolled in a state
11 education institution;
12 (b) a standardized agency manual applies only to internal fiscal or administrative details
13 of governmental entities supervised under statute;
14 (c) an agency issues policy or other statements that are advisory, informative, or
15 descriptive, and do not conform to the requirements of Subsections (2) and (3); or
16 (d) an agency makes nonsubstantive changes in a rule, except that the agency shall file all
17 nonsubstantive changes in a rule with the division.
18 (5) A rule shall enumerate any penalty authorized by statute that may result from its
19 violation.
20 (6) Each agency shall enact rules incorporating the principles of law not already in its rules
21 that are established by final adjudicative decisions within 120 days after the decision is announced
22 in its cases.
23 (7) (a) Each agency may enact a rule that incorporates by reference:
24 (i) all or any part of another code, rule, or regulation that has been adopted by a federal
25 agency, an agency or political subdivision of this state, an agency of another state, or by a
26 nationally-recognized organization or association;
27 (ii) state agency implementation plans mandated by the federal government for
28 participation in the federal program;
29 [(ii)] (iii) lists, tables, illustrations, or similar materials that are subject to frequent change,
30 fully described in the rule, and are available for public inspection; or
31 [(iii)] (iv) lists, tables, illustrations, or similar materials that the director determines are too

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1 expensive to reproduce in the administrative code.
2 (b) Rules incorporating materials by reference shall:
3 (i) be enacted according to the procedures outlined in this chapter;
4 (ii) state that the referenced material is incorporated by reference;
5 (iii) state the date, issue, or version of the material being incorporated; and
6 (iv) define specifically what material is incorporated by reference and identify any agency
7 deviations from it.
8 (c) The agency shall identify any substantive changes in the material incorporated by
9 reference by following the rulemaking procedures of this chapter.
10 (d) The agency shall maintain a complete and current copy of the referenced material
11 available for public inspection at the agency and at the division.
12 (8) (a) This chapter is not intended to inhibit the exercise of agency discretion within the
13 limits prescribed by statute or agency rule.
14 (b) An agency may enact a rule creating a justified exception to a rule.
15 (9) An agency may obtain assistance from the attorney general to ensure that its rules meet
16 legal and constitutional requirements.
17 Section 2. Section 63-46a-9 is amended to read:
18 63-46a-9. Agency review of rules -- Schedule of filings -- Limited exemption for
19 certain rules.
20 (1) Each agency shall review each of its rules within five years of the rule's original
21 effective date or within five years of the filing of the last five-year review, whichever is later.
22 Rules effective prior to 1992 need not be reviewed until 1997.
23 (2) An agency may consider any substantial review of a rule to be a five-year review. If
24 the agency chooses to consider a review a five-year review, it shall follow the procedures outlined
25 in Subsection (3).
26 (3) At the conclusion of its review, the agency shall file a notice of review on or before
27 the anniversary date indicating its intent to continue, amend, or repeal the rule.
28 (a) If the agency continues the rule, it shall file a statement which includes:
29 (i) a concise explanation of the particular statutory provisions under which the rule is
30 enacted and how these provisions authorize or require the rule;
31 (ii) a summary of written comments received [after enactment] during and since the last

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1 five-year review of the rule from interested persons supporting or opposing the rule; and
2 (iii) a reasoned justification for continuation of the rule, including reasons why the agency
3 disagrees with comments in opposition to the rule, if any.
4 (b) If the agency repeals the rule, it shall comply with Section 63-46a-4.
5 (c) If the agency amends and continues the rule, it shall comply with the requirements of
6 Section 63-46a-4 and file the statement required in Subsection (3)(a).
7 (4) (a) The division shall publish the notice and statement in the bulletin.
8 (b) The division may schedule the publication of agency notices and statements, provided
9 that no notice and statement shall be published more than one year after the review deadline
10 established under Subsection (1).
11 (5) The division shall notify an agency of rules due for review at least 180 days prior to
12 the anniversary date.
13 (6) If an agency finds that it will not meet the deadline established in Subsection (1):
14 (a) the agency may file an extension prior to the anniversary date with the division
15 indicating the reason for the extension; and
16 (b) the division shall publish notice of the extension in the next issue of the bulletin.
17 (7) An extension permits the agency to file a notice no more than 120 days after the
18 anniversary date.
19 (8) If an agency fails to file a notice of review or extension on or before the date specified
20 in the notice mandated in Subsection [(4)] (5), the division shall:
21 (a) publish a notice in the next issue of the bulletin that the rule has expired and is no
22 longer enforceable;
23 (b) remove the rule from the code; and
24 (c) notify the agency that the rule has expired.
25 (9) After a rule expires, an agency must comply with the requirements of Section 63-46a-4
26 to reenact the rule.
27 (10) (a) Rules issued under the following provisions related to the Department of
28 Workforce Services or Labor Commission that are in effect on July 1, 1997, are not subject to the
29 requirements of this section until July 1, 1998:
30 (i) Title 34, Labor in General;
31 (ii) Title 34A, Utah Labor Code;

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1 (iii) Title 35, Labor - Industrial Commission;
2 (iv) Title 35A, Utah Workforce Services Code;
3 (v) Title 40, Chapter 2, Coal Mines; and
4 (vi) Title 57, Chapter 21, Utah Fair Housing Act.
5 (b) Any rule described in Subsection (10)(a) that would have expired on or after July 1,
6 1997 but before July 1, 1998, expires July 1, 1998, unless for that rule the Department of
7 Workforce Services or Labor Commission files:
8 (i) the notice of review, described in Subsection (3); or
9 (ii) an extension described in Subsection (6).
10 Section 3. Section 63-46a-11 is amended to read:
11 63-46a-11. Administrative Rules Review Committee.
12 (1) (a) There is created an Administrative Rules Review Committee of ten permanent
13 members and four ex officio members.
14 (b) (i) The committee's permanent members shall be composed of five members of the
15 Senate, appointed by the president of the Senate, and five members of the House, appointed by the
16 speaker of the House, with no more than three senators and three representatives from the same
17 political party.
18 (ii) The permanent members shall convene at least once each month as a committee to
19 review new agency rules, amendments to existing agency rules, and repeals of existing agency
20 rules. Meetings may be suspended during the annual general session at the discretion of the
21 committee chairs.
22 (iii) Members shall serve for two-year terms or until their successors are appointed.
23 (iv) A vacancy exists whenever a committee member ceases to be a member of the
24 Legislature, or when a member resigns from the committee. Vacancies shall be filled by the
25 appointing authority, and the replacement shall serve out the unexpired term.
26 (c) When the committee reviews existing rules, the committee's permanent members shall
27 invite the Senate and House chairmen of the standing committee and the Senate and House
28 chairmen of the appropriation subcommittee that have jurisdiction over the agency whose existing
29 rules are being reviewed to participate as nonvoting, ex officio members with the committee.
30 (d) Three representatives and three senators from the permanent members are a quorum for
31 the transaction of business at any meeting.

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1 (2) Each agency rule as defined in Section 63-46a-2 shall be submitted to the committee
2 at the same time public notice is given under Section 63-46a-4.
3 (3) (a) The committee shall exercise continuous oversight of the process of rulemaking.
4 (b) The committee shall examine rules submitted by each agency to determine:
5 (i) whether or not they are authorized by statute;
6 (ii) whether or not they comply with legislative intent;
7 (iii) their impact on the economy and the government operations of the state and local
8 political subdivisions; and
9 (iv) their impact on affected persons.
10 (c) To carry out these duties, the committee may examine any other issues that it considers
11 necessary. The committee may also notify and refer rules to the chairmen of the interim
12 committee which has jurisdiction over a particular agency when the committee determines that an
13 issue involved in an agency's rules may be more appropriately addressed by that committee.
14 (d) In reviewing the rules, the committee shall follow generally accepted principles of
15 statutory construction.
16 (4) The committee may request that the Office of the Legislative Fiscal Analyst prepare
17 a fiscal note on any rule.
18 (5) In order to accomplish its oversight functions, the committee has all the powers granted
19 to legislative interim committees as set forth in Section 36-12-11.
20 (6) (a) The committee may prepare written findings of its review of each rule and may
21 include any recommendations, including legislative action.
22 (b) The committee shall provide to the agency that enacted the rule:
23 (i) a copy of its findings, if any; and
24 (ii) a request that the agency notify the committee of any changes it makes in the rule.
25 (c) The committee shall provide a copy of its findings to any member of the Legislature
26 and to any person affected by the rule who requests a copy.
27 (d) The committee shall provide a copy of its findings to the presiding officers of both the
28 House and the Senate, Senate and House chairmen of the standing committee, and the Senate and
29 House chairmen of the Appropriation Subcommittee that have jurisdiction over the agency whose
30 rules are the subject of the findings.
31 (7) (a) The committee may submit a report on its review of state agency rules to each

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1 member of the Legislature at each regular session.
2 (b) The report shall include:
3 (i) the findings and recommendations made by the committee under Subsection (6);
4 (ii) any action taken by an agency in response to committee recommendations; and
5 (iii) any recommendations by the committee for legislation.
6 Section 4. Section 63-46a-11.5 is amended to read:
7 63-46a-11.5. Legislative reauthorization of agency rules -- Extension of rules by
8 governor.
9 (1) All grants of rulemaking power from the Legislature to a state agency in any statute
10 are made subject to the provisions of this section.
11 (2) (a) Except as provided in Subsection (2)(b), every agency rule that is in effect on
12 January 1 of any calendar year expires on May 1 of that year unless it has been reauthorized by the
13 Legislature.
14 (b) Notwithstanding the provisions of Subsection (1)(a), an agency's rules do not expire
15 if:
16 (i) the rule is explicitly mandated by a federal law or regulation; or
17 (ii) a provision of Utah's constitution vests the agency with specific constitutional
18 authority to regulate.
19 (3) (a) Prior to January 1 of each year, the Administrative Rules Review Committee shall
20 have omnibus legislation prepared for consideration by the Legislature during its annual general
21 session.
22 (b) The omnibus legislation shall be substantially in the following form: "All rules of Utah
23 state agencies are reauthorized except for the following:".
24 (c) Before sending the legislation to the governor for his action, the Administrative Rules
25 Review Committee may send a letter to the governor and to the agency explaining specifically why
26 the committee believes any rule should not be reauthorized.
27 (d) For the purpose of this section, either the entire rule or a single section of a rule may
28 be excepted for reauthorization in the omnibus legislation considered by the Legislature.
29 (4) The Legislature's reauthorization of a rule by legislation does not constitute legislative
30 approval of the rule, nor is it admissible in any proceeding as evidence of legislative intent.
31 (5) (a) If an agency believes that a rule that has not been reauthorized by the Legislature

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1 or that will be allowed to expire should continue in full force and effect and is a rule within their
2 authorized rulemaking power, the agency may seek the governor's declaration extending the rule
3 beyond the expiration date.
4 (b) In seeking the extension, the agency shall submit a petition to the governor that
5 affirmatively states:
6 (i) that the rule is necessary; and
7 (ii) a citation to the source of its authority to make the rule.
8 (c) (i) If the governor finds that the necessity does exist, and that the agency has the
9 authority to make the rule, he may declare the rule to be extended by publishing that declaration
10 in the Administrative Rules Bulletin on or before April 15 of that year.
11 (ii) The declaration shall set forth the rule to be extended, the reasons the extension is
12 necessary, and a citation to the source of the agency's authority to make the rule.
13 (d) If the omnibus bill required by Subsection (3) fails to pass both houses of the
14 Legislature or is found to have a technical legal defect preventing reauthorization of administrative
15 rules intended to be reauthorized by the Legislature, the governor may declare all rules to be
16 extended by publishing a single declaration in the Administrative Rules Bulletin on or before June
17 15 without meeting requirements of Subsections (5)(b) and (c).
18 Section 5. Section 63-46a-14 is amended to read:
19 63-46a-14. Time for contesting a rule -- Statute of limitations.
20 (1) A proceeding to contest any rule on the ground of noncompliance with the procedural
21 requirements of this chapter shall commence within two years of the effective date of the rule.
22 (2) A proceeding to contest any rule on the ground of not being supported by substantial
23 evidence when viewed in light of the whole administrative record shall commence within four
24 years of the effective date of the challenged action.
25 (3) A proceeding to contest any rule on the basis that a change to the rule made under
26 Subsection 63-46a-10(2) or (3) substantively changed the rule shall be commenced within [four]
27 two years of the date the change was made.
28 Section 6. Effective date.
29 This act takes effect on July 1, 1998.


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Legislative Review Note
as of 1-12-98 4:07 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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