H.B. 34

This document includes House Floor Amendments incorporated into the bill on Mon, Jan 24, 2005 at 8:49 AM by ddonat. --> 1

EMERGENCY RELATED AMENDMENTS
2 2005 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Sheryl L. Allen
5
6 LONG TITLE
7 General Description:
8 This bill modifies the State Affairs and Public Safety titles to address emergency issues
9 including energy emergencies.
10 Highlighted Provisions:
11 This bill:
12 . defines and modifies terms;
13 . changes the requirement that the Office of Energy prepare an energy emergency
14 plan to a requirement that the Division of Emergency Services and Homeland
15 Security coordinate the development of an energy emergency plan;
16 . modifies duties of the Division of Emergency Services and Homeland Security;
17 . establishes the requirements for an energy emergency plan;
18 . makes certain emergency related records protected records;
19 . modifies the process for the governor issuing a proclamation declaring a state of
20 emergency related to energy; and
21 . makes technical changes.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:

28 53-2-102, as last amended by Chapter 14, Laws of Utah 2002
29 53-2-104, as last amended by Chapter 14, Laws of Utah 2002
30 63-2-304, as last amended by Chapters 223, 299 and 358, Laws of Utah 2004
31 63-34-101, as last amended by Chapter 352, Laws of Utah 2004
32 63-53a-6, as enacted by Chapter 23, Laws of Utah 1980
33 ENACTS:
34 53-2-110, Utah Code Annotated 1953
35
36 Be it enacted by the Legislature of the state of Utah:
37 Section 1. Section 53-2-102 is amended to read:
38 53-2-102. Definitions.
39 As used in this part:
40 (1) "Attack" means a nuclear, conventional, biological, or chemical warfare action
41 against the United States of America or this state.
42 (2) "Director" means the division director appointed under Section 53-2-103 .
43 (3) "Disaster" means a situation causing, or threatening to cause, widespread damage,
44 social disruption, or injury or loss of life or property resulting from attack, internal disturbance,
45 natural phenomena, or technological hazard.
46 (4) "Division" means the Division of Emergency Services and Homeland Security
47 created in Section 53-2-103 .
48 (5) "Energy" includes the energy resources defined in Section 63-53a-1 .
49 [(5)] (6) "Expenses" means actual labor costs of government and volunteer personnel,
50 including workers compensation benefits, fringe benefits, administrative overhead, cost of
51 equipment, cost of equipment operation, cost of materials, and the cost of any contract labor
52 and materials.
53 [(6)] (7) "Hazardous materials emergency" means a sudden and unexpected release of
54 any substance that because of its quantity, concentration, or physical, chemical, or infectious
55 characteristics presents a direct and immediate threat to public safety or the environment and
56 requires immediate action to mitigate the threat.
57 [(7)] (8) "Internal disturbance" means a riot, prison break, disruptive terrorism, or
58 strike.

59 [(8)] (9) "Natural phenomena" means any earthquake, tornado, storm, flood, landslide,
60 avalanche, forest or range fire, drought, or epidemic.
61 [(9)] (10) "State of emergency" means a condition in any part of this state that requires
62 state government emergency assistance to supplement the local efforts of the affected political
63 subdivision to save lives and to protect property, public health, welfare, [and] or safety in the
64 event of a disaster, or to avoid or reduce the threat of a disaster.
65 [(10)] (11) "Technological hazard" means any hazardous materials accident, mine
66 accident, train derailment, air crash, radiation incident, pollution, structural fire, or explosion.
67 Section 2. Section 53-2-104 is amended to read:
68 53-2-104. Division duties -- Powers.
69 (1) The division shall:
70 (a) respond to the policies of the governor and the Legislature;
71 (b) perform functions relating to emergency services and homeland security matters as
72 directed by the commissioner;
73 (c) prepare, implement, and maintain programs and plans to provide for:
74 (i) prevention and minimization of injury and damage caused by disasters;
75 (ii) prompt and effective response to and recovery from disasters;
76 (iii) identification of areas particularly vulnerable to disasters;
77 (iv) coordination of hazard mitigation and other preventive and preparedness measures
78 designed to eliminate or reduce disasters;
79 (v) assistance to local officials [in designing local], state agencies, and the business and
80 public sectors, in developing emergency action plans;
81 (vi) coordination of federal, state, and local emergency activities;
82 (vii) coordination of emergency operations plans with emergency plans of the federal
83 government;
84 (viii) coordination of search and rescue activities;
85 (ix) coordination of rapid and efficient communications in times of emergency; and
86 (x) other measures necessary, incidental, or appropriate to this part[.]; and
87 (d) coordinate with local officials, state agencies, and the business and public sectors in
88 developing, implementing, and maintaining a state energy emergency plan in accordance with
89 Section 53-2-110 .

90 (2) The division may consult with the Legislative Management Committee, the Judicial
91 Council, and legislative and judicial staff offices to assist them in preparing emergency
92 succession plans and procedures under Title 63, Chapter 5b, Emergency Interim Succession
93 Act.
94 Section 3. Section 53-2-110 is enacted to read:
95 53-2-110. Energy emergency plan.
96 (1) The division shall develop an energy emergency plan consistent with Title 63,
97 Chapter 53a, Energy Emergency Powers of Governor.
98 (2) In developing the energy emergency plan, the division shall coordinate with:
99 (a) the Division of Public Utilities;
100 (b) the Utah Energy Office;
101 (c) the Division of Oil, Gas, and Mining;
102 (d) the Division of Air Quality; and
103 (e) the Department of Agriculture and Food with regard to weights and measures.
104 (3) The energy emergency plan shall:
105 (a) designate the division as the entity that will coordinate the implementation of the
106 energy emergency plan;
107 (b) provide for annual review of the energy emergency plan;
108 (c) provide for cooperation with public utilities and other relevant private sector
109 persons;
110 (d) provide a procedure for maintaining a current list of contact persons required under
111 the energy emergency plan; and
112 (e) provide that the energy emergency plan may only be implemented if the governor
113 declares:
114 (i) a state of emergency as provided in Title 63, Chapter 5a, Disaster Response and
115 Recovery; or
116 (ii) a state of emergency related to energy as provided in Title 63, Chapter 53a, Energy
117 Emergency Powers of Governor.
118 (4) If an event requires the implementation of the energy emergency plan, the division
119 shall report on that event and the implementation of the energy emergency plan to:
120 (a) the governor; and

121 (b) the Public Utilities and Technology Interim Committee.
122 (5) If the energy emergency plan includes a procedure for obtaining information, the
123 energy emergency plan shall incorporate reporting procedures that conform to existing
124 requirements of federal, state, and local regulatory authorities wherever possible.
125 Section 4. Section 63-2-304 is amended to read:
126 63-2-304. Protected records.
127 The following records are protected if properly classified by a governmental entity:
128 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
129 has provided the governmental entity with the information specified in Section 63-2-308 ;
130 (2) commercial information or nonindividual financial information obtained from a
131 person if:
132 (a) disclosure of the information could reasonably be expected to result in unfair
133 competitive injury to the person submitting the information or would impair the ability of the
134 governmental entity to obtain necessary information in the future;
135 (b) the person submitting the information has a greater interest in prohibiting access
136 than the public in obtaining access; and
137 (c) the person submitting the information has provided the governmental entity with
138 the information specified in Section 63-2-308 ;
139 (3) commercial or financial information acquired or prepared by a governmental entity
140 to the extent that disclosure would lead to financial speculations in currencies, securities, or
141 commodities that will interfere with a planned transaction by the governmental entity or cause
142 substantial financial injury to the governmental entity or state economy;
143 (4) records the disclosure of which could cause commercial injury to, or confer a
144 competitive advantage upon a potential or actual competitor of, a commercial project entity as
145 defined in Subsection 11-13-103 (4);
146 (5) test questions and answers to be used in future license, certification, registration,
147 employment, or academic examinations;
148 (6) records the disclosure of which would impair governmental procurement
149 proceedings or give an unfair advantage to any person proposing to enter into a contract or
150 agreement with a governmental entity, except that this Subsection (6) does not restrict the right
151 of a person to see bids submitted to or by a governmental entity after bidding has closed;

152 (7) records that would identify real property or the appraisal or estimated value of real
153 or personal property, including intellectual property, under consideration for public acquisition
154 before any rights to the property are acquired unless:
155 (a) public interest in obtaining access to the information outweighs the governmental
156 entity's need to acquire the property on the best terms possible;
157 (b) the information has already been disclosed to persons not employed by or under a
158 duty of confidentiality to the entity;
159 (c) in the case of records that would identify property, potential sellers of the described
160 property have already learned of the governmental entity's plans to acquire the property;
161 (d) in the case of records that would identify the appraisal or estimated value of
162 property, the potential sellers have already learned of the governmental entity's estimated value
163 of the property; or
164 (e) the property under consideration for public acquisition is a single family residence
165 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
166 the property as required under Section 78-34-4.5 ;
167 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
168 compensated transaction of real or personal property including intellectual property, which, if
169 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
170 of the subject property, unless:
171 (a) the public interest in access outweighs the interests in restricting access, including
172 the governmental entity's interest in maximizing the financial benefit of the transaction; or
173 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
174 the value of the subject property have already been disclosed to persons not employed by or
175 under a duty of confidentiality to the entity;
176 (9) records created or maintained for civil, criminal, or administrative enforcement
177 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
178 release of the records:
179 (a) reasonably could be expected to interfere with investigations undertaken for
180 enforcement, discipline, licensing, certification, or registration purposes;
181 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
182 proceedings;

183 (c) would create a danger of depriving a person of a right to a fair trial or impartial
184 hearing;
185 (d) reasonably could be expected to disclose the identity of a source who is not
186 generally known outside of government and, in the case of a record compiled in the course of
187 an investigation, disclose information furnished by a source not generally known outside of
188 government if disclosure would compromise the source; or
189 (e) reasonably could be expected to disclose investigative or audit techniques,
190 procedures, policies, or orders not generally known outside of government if disclosure would
191 interfere with enforcement or audit efforts;
192 (10) records the disclosure of which would jeopardize the life or safety of an
193 individual;
194 (11) records the disclosure of which would jeopardize the security of governmental
195 property, governmental programs, or governmental recordkeeping systems from damage, theft,
196 or other appropriation or use contrary to law or public policy;
197 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
198 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
199 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
200 (13) records that, if disclosed, would reveal recommendations made to the Board of
201 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
202 Board of Pardons and Parole, or the Department of Human Services that are based on the
203 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
204 jurisdiction;
205 (14) records and audit workpapers that identify audit, collection, and operational
206 procedures and methods used by the State Tax Commission, if disclosure would interfere with
207 audits or collections;
208 (15) records of a governmental audit agency relating to an ongoing or planned audit
209 until the final audit is released;
210 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
211 litigation that are not available under the rules of discovery;
212 (17) records disclosing an attorney's work product, including the mental impressions or
213 legal theories of an attorney or other representative of a governmental entity concerning

214 litigation;
215 (18) records of communications between a governmental entity and an attorney
216 representing, retained, or employed by the governmental entity if the communications would be
217 privileged as provided in Section 78-24-8 ;
218 (19) personal files of a legislator, including personal correspondence to or from a
219 member of the Legislature, provided that correspondence that gives notice of legislative action
220 or policy may not be classified as protected under this section;
221 (20) (a) records in the custody or control of the Office of Legislative Research and
222 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
223 legislation or contemplated course of action before the legislator has elected to support the
224 legislation or course of action, or made the legislation or course of action public; and
225 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
226 Office of Legislative Research and General Counsel is a public document unless a legislator
227 asks that the records requesting the legislation be maintained as protected records until such
228 time as the legislator elects to make the legislation or course of action public;
229 (21) research requests from legislators to the Office of Legislative Research and
230 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
231 in response to these requests;
232 (22) drafts, unless otherwise classified as public;
233 (23) records concerning a governmental entity's strategy about collective bargaining or
234 pending litigation;
235 (24) records of investigations of loss occurrences and analyses of loss occurrences that
236 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
237 Uninsured Employers' Fund, or similar divisions in other governmental entities;
238 (25) records, other than personnel evaluations, that contain a personal recommendation
239 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
240 personal privacy, or disclosure is not in the public interest;
241 (26) records that reveal the location of historic, prehistoric, paleontological, or
242 biological resources that if known would jeopardize the security of those resources or of
243 valuable historic, scientific, educational, or cultural information;
244 (27) records of independent state agencies if the disclosure of the records would

245 conflict with the fiduciary obligations of the agency;
246 (28) records of a public institution of higher education regarding tenure evaluations,
247 appointments, applications for admissions, retention decisions, and promotions, which could be
248 properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
249 Meetings, provided that records of the final decisions about tenure, appointments, retention,
250 promotions, or those students admitted, may not be classified as protected under this section;
251 (29) records of the governor's office, including budget recommendations, legislative
252 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
253 policies or contemplated courses of action before the governor has implemented or rejected
254 those policies or courses of action or made them public;
255 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
256 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
257 recommendations in these areas;
258 (31) records provided by the United States or by a government entity outside the state
259 that are given to the governmental entity with a requirement that they be managed as protected
260 records if the providing entity certifies that the record would not be subject to public disclosure
261 if retained by it;
262 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
263 except as provided in Section 52-4-7 ;
264 (33) records that would reveal the contents of settlement negotiations but not including
265 final settlements or empirical data to the extent that they are not otherwise exempt from
266 disclosure;
267 (34) memoranda prepared by staff and used in the decision-making process by an
268 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
269 other body charged by law with performing a quasi-judicial function;
270 (35) records that would reveal negotiations regarding assistance or incentives offered
271 by or requested from a governmental entity for the purpose of encouraging a person to expand
272 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
273 person or place the governmental entity at a competitive disadvantage, but this section may not
274 be used to restrict access to a record evidencing a final contract;
275 (36) materials to which access must be limited for purposes of securing or maintaining

276 the governmental entity's proprietary protection of intellectual property rights including patents,
277 copyrights, and trade secrets;
278 (37) the name of a donor or a prospective donor to a governmental entity, including a
279 public institution of higher education, and other information concerning the donation that could
280 reasonably be expected to reveal the identity of the donor, provided that:
281 (a) the donor requests anonymity in writing;
282 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
283 classified protected by the governmental entity under this Subsection (37); and
284 (c) except for public institutions of higher education, the governmental unit to which
285 the donation is made is primarily engaged in educational, charitable, or artistic endeavors, and
286 has no regulatory or legislative authority over the donor, a member of his immediate family, or
287 any entity owned or controlled by the donor or his immediate family;
288 (38) accident reports, except as provided in Sections 41-6-40 , 41-12a-202 , and
289 73-18-13 ;
290 (39) a notification of workers' compensation insurance coverage described in Section
291 34A-2-205 ;
292 (40) (a) the following records of a public institution of education, which have been
293 developed, discovered, or received by or on behalf of faculty, staff, employees, or students of
294 the institution:
295 (i) unpublished lecture notes;
296 (ii) unpublished research notes and data;
297 (iii) unpublished manuscripts;
298 (iv) creative works in process;
299 (v) scholarly correspondence; and
300 (vi) confidential information contained in research proposals; and
301 (b) Subsection (40)(a) may not be construed to affect the ownership of a record;
302 (41) (a) records in the custody or control of the Office of Legislative Auditor General
303 that would reveal the name of a particular legislator who requests a legislative audit prior to the
304 date that audit is completed and made public; and
305 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
306 Office of the Legislative Auditor General is a public document unless the legislator asks that

307 the records in the custody or control of the Office of Legislative Auditor General that would
308 reveal the name of a particular legislator who requests a legislative audit be maintained as
309 protected records until the audit is completed and made public;
310 (42) records that provide detail as to the location of an explosive, including a map or
311 other document that indicates the location of:
312 (a) a production facility; or
313 (b) a magazine;
314 (43) information contained in the database described in Section 62A-3-311.1 ;
315 (44) information contained in the Management Information System and Licensing
316 Information System described in Title 62A, Chapter 4a, Child and Family Services;
317 (45) information regarding National Guard operations or activities in support of the
318 National Guard's federal mission;
319 (46) records provided by any pawnbroker or pawnshop to a law enforcement agency in
320 compliance with Title 13, Chapter 32a, Pawnshop Transaction Information Act; [and]
321 (47) information regarding food security, risk, and vulnerability assessments performed
322 by the Department of Agriculture and Food[.]; and
323 (48) H. except to the extent that the record is exempt from this chapter
323a pursuant to Section 63-2-106, .H records related to an emergency plan or program prepared or
323b maintained by the
324 Division of Emergency Services and Homeland Security the disclosure of which would
325 jeopardize:
326 (a) the safety of the general public; or
327 (b) the security of:
328 (i) governmental property;
329 (ii) governmental programs; or
330 (iii) the property of a private person who provides the Division of Emergency Services
331 and Homeland Security information.
332 Section 5. Section 63-34-101 is amended to read:
333 63-34-101. Utah Energy Office created -- Utah Energy Office duties.
334 (1) There is created within the department the Utah Energy Office.
335 (2) The Utah Energy Office shall:
336 (a) by following the procedures and requirements of Title 63, Chapter 38e, Federal
337 Funds Procedures, seek federal grants, loans, or participation in federal programs, and, in

338 accordance with applicable federal program guidelines, administer federally funded state
339 programs regarding:
340 (i) renewable energy;
341 (ii) energy efficiency; and
342 (iii) energy conservation;
343 (b) coordinate and facilitate the development and implementation of programs:
344 (i) for state buildings; and
345 (ii) relating to:
346 (A) procurement of energy;
347 (B) consumption of energy;
348 (C) conservation of energy; and
349 (D) efficient use of energy;
350 [(c) if requested by the governor, prepare a state energy emergency plan in accordance
351 with Title 63, Chapter 53a, Energy Emergency Powers of Governor;]
352 (c) participate in the development of a state energy emergency plan developed in
353 accordance with Section 53-2-110 ;
354 (d) participate in regulatory proceedings as appropriate to promote the development,
355 conservation, and efficient use of energy;
356 (e) coordinate state governmental functions regarding energy development and use;
357 (f) facilitate the development and implementation of policies and programs in the state
358 related to:
359 (i) energy production;
360 (ii) processing of energy;
361 (iii) use of energy; and
362 (iv) energy related technology;
363 (g) monitor federal laws and regulations related to:
364 (i) energy development;
365 (ii) processing of energy; or
366 (iii) use of energy;
367 (h) recommend state policy positions regarding energy to:
368 (i) the governor; or

369 (ii) the Legislature;
370 (i) represent the state on regional and national energy matters:
371 (i) at the initiative of the office; or
372 (ii) as requested by the governor;
373 (j) coordinate and consolidate energy resource data collection throughout state
374 government;
375 (k) provide the Legislature and the governor with:
376 (i) an annual report addressing the current status of energy markets in the state; and
377 (ii) an independent assessment of energy issues; and
378 (l) perform forecasts of state-level:
379 (i) energy production;
380 (ii) energy consumption; and
381 (iii) energy prices.
382 Section 6. Section 63-53a-6 is amended to read:
383 63-53a-6. Proclamation of emergency -- Effective period -- Extension of renewal
384 by Legislature.
385 (1) (a) The governor may[, with the consent of the Legislature, or when not in session
386 the advice of the Legislative Management Committee, and when he] issue a proclamation
387 declaring that a state of emergency exists with regard to one or more energy resources if the
388 governor determines that an existing or imminent severe disruption or impending shortage in
389 the supply of one or more energy resources, in this state or elsewhere[,]:
390 (i) threatens:
391 (A) the availability of essential services[,] or transportation[,]; or
392 (B) the operation of the economy[, jeopardizing]; and
393 (ii) because of the threats described in Subsection (1)(a)(i), jeopardizes the peace,
394 health, safety, and welfare of the people of this state[, issue a proclamation declaring that a
395 state of emergency exists with regard to these resources, which].
396 (b) The proclamation declaring a state of emergency described in Subsection (1)(a)
397 shall [also] state with specificity the nature of the disruption or shortage in an energy resource.
398 (c) (i) Within seven calendar days of the day on which the governor issues a
399 proclamation declaring a state of emergency under this section, the Legislative Management

400 Committee shall:
401 (A) review the proclamation; and
402 (B) advise the governor on the proclamation.
403 (ii) The failure of the Legislative Management Committee to meet as required by
404 Subsection (1)(c)(i) does not affect the validity of the proclamation declaring a state of
405 emergency.
406 (2) (a) A proclamation issued under this section, and any order or rule issued as a result
407 [thereof,] of the proclamation shall continue in effect until 60 days from the date of the
408 proclamation of the state of emergency unless the governor rescinds [it] the proclamation and
409 declares the emergency ended prior to the expiration of this 60-day period.
410 (b) A proclamation issued within 30 days of the expiration of a prior proclamation for
411 the same emergency shall be considered a renewal or extension subject to Subsection (3).
412 (3) A proclamation may be renewed or extended only by joint resolution of the
413 Legislature.




Legislative Review Note
as of 12-8-04 3:27 PM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel

Interim Committee Note
as of 12-08-04 3:28 PM

The Public Utilities and Technology Interim Committee recommended this bill.

Legislative Committee Note
as of 12-08-04 3:28 PM

The Energy Policy Task Force recommended this bill.