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H.B. 214







Sponsor: James R. Gowans

             8      LONG TITLE
             9      General Description:
             10          This bill clarifies the School and Institutional Trust Lands Administration's authority to
             11      make administrative rules.
             12      Highlighted Provisions:
             13          This bill:
             14          .    clarifies that the term "rule" or its derivations shall be used to describe actions taken
             15      by the School and Institutional Trust Lands Administration that meet the
             16      requirements for rulemaking.
             17      Monies Appropriated in this Bill:
             18          None
             19      Other Special Clauses:
             20          None
             21      Utah Code Sections Affected:
             22      AMENDS:
             23          53C-1-201, as last amended by Chapter 192, Laws of Utah 2003
             24          53C-1-303, as last amended by Chapter 126, Laws of Utah 1997
             25          53C-2-201, as last amended by Chapter 299, Laws of Utah 1995
             27      Be it enacted by the Legislature of the state of Utah:

             28          Section 1. Section 53C-1-201 is amended to read:
             29           53C-1-201. Creation of administration -- Purpose -- Director.
             30          (1) (a) There is established within state government the School and Institutional Trust
             31      Lands Administration.
             32          (b) The administration shall manage all school and institutional trust lands and assets
             33      within the state, except as otherwise provided in Title 53C, Chapter 3 [of this title], Deposit
             34      and Allocation of Revenue from Trust Lands, and Section 51-7-12 .
             35          (2) The administration is an independent state agency and not a division of any other
             36      department.
             37          (3) (a) It is subject to the usual legislative and executive department controls except as
             38      follows:
             39          (i) (A) the director may make rules as approved by the board that allow the
             40      administration to classify a business proposal submitted to the administration as protected
             41      under Section 63-2-304 , for as long as is necessary to evaluate the proposals;
             42          (B) the administration shall return the proposal to the party who submitted the
             43      proposal, and incur no further duties under Title 63, Chapter 2, Government Records Access
             44      and Management Act, if the administration determines not to proceed with the proposal;
             45          (C) the administration shall classify the proposal pursuant to law if it decides to
             46      proceed with the proposal; and
             47          (D) Section 63-2-403 does not apply during the review period;
             48          (ii) the director shall make rules in compliance with Title 63, Chapter 46a, Utah
             49      Administrative Rulemaking Act, except that the director, with the board's approval, may
             50      establish a procedure for the expedited approval of rules, based on written findings by the
             51      director showing:
             52          (A) the changes in business opportunities affecting the assets of the trust;
             53          (B) the specific business opportunity arising out of those changes which may be lost
             54      without the rule or changes to the rule;
             55          (C) the reasons the normal procedures under Section 63-46a-4 cannot be met without
             56      causing the loss of the specific opportunity;
             57          (D) approval by at least five board members; and
             58          (E) that the director has filed a copy of the rule and a rule analysis, stating the specific

             59      reasons and justifications for its findings, with the Division of Administrative Rules and
             60      notified interested parties as provided in Subsection 63-46a-4 (7); and
             61          (iii) the administration shall comply with Title 67, Chapter 19, Utah State Personnel
             62      Management Act, except as follows:
             63          (A) the board may approve, upon recommendation of the director, that exemption for
             64      specific positions under Subsections 67-19-12 (2) and 67-19-15 (1) is required in order to enable
             65      the administration to efficiently fulfill its responsibilities under the law. The director shall
             66      consult with the director of the Department of Human Resource Management prior to making
             67      such a recommendation. The positions of director, deputy director, assistant director, legal
             68      counsel appointed under Subsection 53C-1-305 (2), administrative assistant, and public affairs
             69      officer are exempt under Subsections 67-19-12 (2) and 67-19-15 (1);
             70          (B) salary for exempted positions, except for the director, shall be set by the director,
             71      after consultation with the director of the Department of Human Resource Management, within
             72      ranges approved by the board. The board and director shall consider salaries for similar
             73      positions in private enterprise and other public employment when setting salary ranges; and
             74          (C) the board may create an annual incentive and bonus plan for the director and other
             75      administration employees designated by the board, based upon the attainment of financial
             76      performance goals and other measurable criteria defined and budgeted in advance by the board;
             77      and
             78          (iv) the administration shall comply with Title 63, Chapter 56, Utah Procurement
             79      Code, except where the board approves, upon recommendation of the director, exemption from
             80      the Utah Procurement Code, and simultaneous adoption of [policies] rules under Title 63,
             81      Chapter 46a, Utah Administrative Rulemaking Act, for procurement, which enable the
             82      administration to efficiently fulfill its responsibilities under the law.
             83          (b) (i) The board and director shall review the exceptions under Subsection (3)(a) and
             84      make recommendations for any modification, if required, which the Legislature would be asked
             85      to consider during its annual general session.
             86          (ii) The board and director may include in their recommendations any other proposed
             87      exceptions from the usual executive and legislative controls the board and director consider
             88      necessary to accomplish the purpose of this title.
             89          (4) The administration is managed by a director of school and institutional trust lands

             90      appointed by a majority vote of the board of trustees with the consent of the governor.
             91          (5) (a) The board of trustees shall provide policies for the management of the
             92      administration and for the management of trust lands and assets.
             93          (b) The board shall provide policies for the ownership and control of Native American
             94      remains that are discovered or excavated on school and institutional trust lands in consultation
             95      with the Division of Indian Affairs and giving due consideration to Title 9, Chapter 9, Part 4,
             96      Native American Grave Protection and Repatriation Act. The director may make rules in
             97      accordance with Title 63, Chapter 46a, Administrative Rulemaking Act, to implement policies
             98      provided by the board regarding Native American remains.
             99          (6) In connection with joint ventures for the development of trust lands and minerals
             100      approved by the board under Subsections 53C-1-303 (4)[(c)] (e) and 53C-2-401 (1)(d), the
             101      administration may become a member of a limited liability company under Title 48, Chapter
             102      2c, Utah Revised Limited Liability Company Act, and is considered a person under Section
             103      48-2c-102 for such purposes.
             104          Section 2. Section 53C-1-303 is amended to read:
             105           53C-1-303. Responsibilities of director -- Budget review -- Legal counsel --
             106      Contract for services.
             107          (1) In carrying out the policies of the board of trustees and in establishing procedures
             108      and rules the director shall:
             109          (a) take an oath of office before assuming any duties as the director;
             110          (b) adopt procedures and rules necessary for the proper administration of matters
             111      entrusted to the director by state law and board policy;
             112          (c) submit to the board for its review and concurrence on any rules necessary for the
             113      proper management of matters entrusted to the administration;
             114          (d) faithfully manage the administration under the policies established by the board;
             115          (e) submit to the board and for public inspection by October 1 of each year, an annual
             116      management budget and financial plan for operations of the administration and, after approval
             117      by the board, submit the budget to the governor;
             118          (f) direct and control the budget expenditures as finally authorized and appropriated;
             119          (g) establish job descriptions and employ, within the limitation of the budget, staff
             120      necessary to accomplish the purposes of the office subject to Section 53C-1-201 ;

             121          (h) establish, in accordance with generally accepted principles of fund accounting, a
             122      system to identify and account for the assets and vested interests of each beneficiary;
             123          (i) maintain appropriate records of trust activities to enable auditors appointed by
             124      appropriate state agencies or the board to conduct periodic audits of trust activities;
             125          (j) provide that all leases, contracts, and agreements be submitted to legal counsel for
             126      review of compliance with applicable law and fiduciary duties prior to execution and utilize the
             127      services of the attorney general as provided in Section 53C-1-305 ;
             128          (k) keep the board, beneficiaries, governor, Legislature, and the public informed about
             129      the work of the director and administration by reporting to the board in a public meeting at
             130      least once during each calendar quarter; and
             131          (l) respond in writing within a reasonable time to a request by the board for responses
             132      to questions on policies and practices affecting the management of the trust.
             133          (2) Procedures and rules adopted by the Division of State Lands and Forestry as they
             134      relate to trust lands prior to the effective date of this act remain in effect until amended or
             135      repealed by the director.
             136          (3) The administration shall be the named party in substitution of the Division of State
             137      Lands and Forestry or its predecessor agencies, with respect to all documents affecting trust
             138      lands from the effective date of this act.
             139          (4) The director may:
             140          (a) with the consent of the state risk manager and the board, manage lands or interests
             141      in lands held by any other public or private party pursuant to policies established by the board
             142      and may make rules to implement these board policies;
             143          (b) sue or be sued as the director of school and institutional trust lands;
             144          (c) contract with other public agencies for personnel management services;
             145          (d) contract with any public or private entity to make improvements to or upon trust
             146      lands and to carry out any of the responsibilities of the office, so long as the contract requires
             147      strict adherence to trust management principles, applicable law and regulation, and is subject to
             148      immediate suspension or termination for cause; and
             149          (e) with the approval of the board enter into joint ventures and other business
             150      arrangements consistent with the purposes of the trust.
             151          (5) Any application or bid required for the lease, permitting, or sale of lands in a

             152      competitive process or any request for review pursuant to Section 53C-1-304 shall be
             153      considered filed or made on the date received by the appropriate administrative office, whether
             154      transmitted by United States mail or in any other manner.
             155          Section 3. Section 53C-2-201 is amended to read:
             156           53C-2-201. Planning procedures -- Assistance from other state agencies -- Plans
             157      consistent with trust responsibilities.
             158          (1) The director:
             159          (a) shall develop rules describing the degree of planning necessary for each category of
             160      activity on trust lands; and
             161          (b) may request other state agencies to generate technical data or other support services
             162      for the development and implementation of trust lands plans.
             163          (2) The plans for school and institutional trust lands shall be:
             164          (a) developed in a manner consistent with the director's responsibility to insure that the
             165      interest of the trust beneficiaries is paramount; and
             166          (b) if required by rule, approved by the board.
             167          (3) The director shall [adopt policies] make rules under Title 63, Chapter 46a, Utah
             168      Administrative Rulemaking Act, for notifying and consulting with interested parties under this
             169      section.
             170          (4) Subject to Subsection [ 53C-2-201 ](1), the development of a written plan is not a
             171      prerequisite to actions by the director.

Legislative Review Note
    as of 1-13-04 10:01 AM

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

Office of Legislative Research and General Counsel

Legislative Committee Note
    as of 01-19-04 12:57 PM

The Administrative Rules Review Committee recommended this bill.

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