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H.B. 263
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7 LONG TITLE
8 General Description:
9 This bill modifies parts of the Utah Code to make technical corrections including
10 alphabetizing definitions, updating cross references, and correcting numbering.
11 Highlighted Provisions:
12 This bill:
13 . modifies parts of the Utah Code to make technical corrections including
14 alphabetizing definitions, updating cross references, and correcting numbering.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 3-1-2, Utah Code Annotated 1953
22 3-1-4, Utah Code Annotated 1953
23 3-1-8, Utah Code Annotated 1953
24 3-1-19, Utah Code Annotated 1953
25 3-1-21, as last amended by Laws of Utah 1984, Chapter 66
26 3-1-45, as enacted by Laws of Utah 1994, Chapter 204
27 4-1-8, as last amended by Laws of Utah 2000, Chapter 18
28 4-8-4, as enacted by Laws of Utah 1979, Chapter 2
29 4-16-2, as last amended by Laws of Utah 1997, Chapter 81
30 4-16-7, as last amended by Laws of Utah 1997, Chapter 81
31 4-17-3.5, as last amended by Laws of Utah 1997, Chapter 82
32 4-19-2, as last amended by Laws of Utah 2009, Chapter 260
33 4-23-4, as last amended by Laws of Utah 1996, Chapter 243
34 4-24-4, as last amended by Laws of Utah 1996, Chapter 243
35 4-24-10, as last amended by Laws of Utah 1997, Chapter 302
36 4-32-4, as last amended by Laws of Utah 1997, Chapter 302
37 4-32-7, as last amended by Laws of Utah 2008, Chapter 382
38 4-38-8, as last amended by Laws of Utah 1993, Chapter 64
39 7-2-7, as last amended by Laws of Utah 2000, Chapter 260
40 7-7-15, as last amended by Laws of Utah 1989, Chapter 267
41 7-9-30, as last amended by Laws of Utah 1990, Chapter 93
42 7-9-43, as last amended by Laws of Utah 1996, Chapter 243
43 7-9-53, as last amended by Laws of Utah 2003, Chapter 327
44 7-15-2, as last amended by Laws of Utah 2007, Chapter 87
45 8-4-2, as last amended by Laws of Utah 2000, Chapter 167
46 9-3-410, as last amended by Laws of Utah 2008, Chapter 382
47 9-4-202, as last amended by Laws of Utah 2008, Chapter 382
48 9-6-305, as last amended by Laws of Utah 1996, Chapter 243
49 9-6-505, as renumbered and amended by Laws of Utah 1992, Chapter 241
50 9-7-204, as last amended by Laws of Utah 1996, Chapters 194 and 243
51 9-8-705, as enacted by Laws of Utah 1991, Chapter 121
52 11-32-3.5, as enacted by Laws of Utah 1995, Chapter 235
53 11-32-15, as enacted by Laws of Utah 1987, Chapter 143
54 13-11-21, as enacted by Laws of Utah 1973, Chapter 188
55 13-28-2, as enacted by Laws of Utah 1995, Chapter 196
56 16-10a-705, as enacted by Laws of Utah 1992, Chapter 277
57 16-10a-906, as enacted by Laws of Utah 1992, Chapter 277
58 16-10a-1325, as enacted by Laws of Utah 1992, Chapter 277
59 17-36-5, as last amended by Laws of Utah 1996, Chapters 212 and 243
60 19-2-109.2, as last amended by Laws of Utah 1996, Chapter 243
61 19-2-113, as renumbered and amended by Laws of Utah 1991, Chapter 112
62 19-5-115, as last amended by Laws of Utah 1998, Chapter 271
63 19-6-108.5, as enacted by Laws of Utah 1992, Chapter 282
64 19-6-316, as last amended by Laws of Utah 1995, Chapter 324
65 19-6-318, as last amended by Laws of Utah 1995, Chapter 324
66 19-6-325, as enacted by Laws of Utah 1991, Chapter 194
67 19-6-402, as last amended by Laws of Utah 2005, Chapter 200
68 19-6-703, as last amended by Laws of Utah 2000, Chapter 1
69 19-6-706, as enacted by Laws of Utah 1993, Chapter 283
70 20A-1-703, as last amended by Laws of Utah 1997, Chapter 296
71 20A-3-307, as enacted by Laws of Utah 1993, Chapter 1
72 20A-7-501, as renumbered and amended by Laws of Utah 1994, Chapter 272
73 23-14-2.6, as last amended by Laws of Utah 1997, Chapter 276
74 23-22-2, as last amended by Laws of Utah 1992, Chapter 86
75 26-18-102, as last amended by Laws of Utah 1996, Chapter 243
76 26A-1-111, as last amended by Laws of Utah 2002, Chapter 249
77 31A-5-217.5, as enacted by Laws of Utah 1992, Chapter 230
78 31A-8-103, as last amended by Laws of Utah 2004, Chapters 2 and 90
79 31A-15-202, as enacted by Laws of Utah 1992, Chapter 258
80 31A-16-106, as repealed and reenacted by Laws of Utah 1992, Chapter 258
81 31A-17-506, as last amended by Laws of Utah 2002, Chapter 308
82 36-20-2, as enacted by Laws of Utah 1993, Chapter 282
83 39-1-1, as last amended by Laws of Utah 1989, Chapter 15
84 40-6-6.5, as enacted by Laws of Utah 1992, Chapter 34
85 40-6-9, as last amended by Laws of Utah 1993, Chapter 151
86 40-10-3, as last amended by Laws of Utah 1997, Chapter 99
87 40-10-18, as last amended by Laws of Utah 1997, Chapter 49
88 41-1a-510, as enacted by Laws of Utah 1992, Chapter 1 and last amended by Laws of
89 Utah 1992, Chapter 218
90 41-1a-1001, as last amended by Laws of Utah 1994, Chapter 184
91 41-1a-1002, as last amended by Laws of Utah 1994, Chapter 184
92 41-3-106, as last amended by Laws of Utah 1996, Chapter 243
93 48-2a-402, as last amended by Laws of Utah 1991, Chapter 189
94 52-3-1, as last amended by Laws of Utah 1988, Chapter 25
95 53-3-213, as renumbered and amended by Laws of Utah 1993, Chapter 234
96 53-3-225, as last amended by Laws of Utah 1993, Second Special Session, Chapter 5
97 53-3-416, as renumbered and amended by Laws of Utah 1993, Chapter 234
98 53-3-908, as last amended by Laws of Utah 1996, Chapter 243
99 53-5-703, as last amended by Laws of Utah 1997, Chapters 10 and 280
100 53-6-108, as renumbered and amended by Laws of Utah 1993, Chapter 234
101 53-6-302, as enacted by Laws of Utah 1995, Chapter 134
102 53-7-102, as renumbered and amended by Laws of Utah 1993, Chapter 234
103 53-7-222, as last amended by Laws of Utah 1997, Chapter 82
104 53-7-309, as renumbered and amended by Laws of Utah 1993, Chapter 234
105 53-7-315, as renumbered and amended by Laws of Utah 1993, Chapter 234
106 53-10-211, as renumbered and amended by Laws of Utah 1998, Chapter 263
107 53A-26a-305, as enacted by Laws of Utah 1994, Chapter 306
108 53B-12-104, as enacted by Laws of Utah 1987, Chapter 167
109 53B-21-102, as last amended by Laws of Utah 1997, Chapter 58
110 54-7-13.6, as enacted by Laws of Utah 2009, Chapter 319
111 54-8b-13, as enacted by Laws of Utah 1990, Chapter 141
112 56-1-18.5, as last amended by Laws of Utah 1996, Chapter 122
113 57-11-7, as last amended by Laws of Utah 1995, Chapter 180
114 58-1-201, as last amended by Laws of Utah 1997, Chapter 10
115 58-41-4, as last amended by Laws of Utah 1993, Chapter 297
116 58-54-3, as last amended by Laws of Utah 1996, Chapters 232 and 243
117 58-57-7, as last amended by Laws of Utah 2006, Chapter 106
118 58-73-401, as last amended by Laws of Utah 1996, Chapter 175 and renumbered and
119 amended by Laws of Utah 1996, Chapter 253
120 59-2-1114, as last amended by Laws of Utah 2000, Chapter 47
121 59-10-503, as renumbered and amended by Laws of Utah 1987, Chapter 2
122 59-10-517, as renumbered and amended by Laws of Utah 1987, Chapter 2
123 59-11-114, as renumbered and amended by Laws of Utah 1987, Chapter 2
124 61-1-10, as last amended by Laws of Utah 1991, Chapter 161
125 62A-3-206, as last amended by Laws of Utah 1993, Chapter 176
126 63A-3-203, as renumbered and amended by Laws of Utah 1993, Chapter 212
127 63A-4-103, as renumbered and amended by Laws of Utah 1993, Chapter 212
128 63A-5-302, as last amended by Laws of Utah 2008, Chapter 382
129 63J-1-602, as enacted by Laws of Utah 2009, Chapter 368
130 63M-9-301, as renumbered and amended by Laws of Utah 2008, Chapter 382
131 67-1-8.1, as last amended by Laws of Utah 1996, Chapter 243
132 67-19a-201, as last amended by Laws of Utah 1996, Chapters 194 and 243
133 67-21-3, as last amended by Laws of Utah 1992, Chapter 187
134 70A-2a-219, as enacted by Laws of Utah 1990, Chapter 197
135 70A-2a-529, as last amended by Laws of Utah 1993, Chapter 237
136 70A-3-206, as repealed and reenacted by Laws of Utah 1993, Chapter 237
137 70A-3-307, as repealed and reenacted by Laws of Utah 1993, Chapter 237
138 70A-3-310, as enacted by Laws of Utah 1993, Chapter 237
139 70A-3-502, as repealed and reenacted by Laws of Utah 1993, Chapter 237
140 70A-4a-507, as last amended by Laws of Utah 1993, Chapter 237
141 70A-8-106, as repealed and reenacted by Laws of Utah 1996, Chapter 204
142 70A-8-202, as repealed and reenacted by Laws of Utah 1996, Chapter 204
143 75-2-103, as repealed and reenacted by Laws of Utah 1998, Chapter 39
144 75-2-302, as repealed and reenacted by Laws of Utah 1998, Chapter 39
145 75-2-603, as repealed and reenacted by Laws of Utah 1998, Chapter 39
146 75-2-606, as repealed and reenacted by Laws of Utah 1998, Chapter 39
147 75-5-410, as last amended by Laws of Utah 1997, Chapter 161
148 76-2-402, as last amended by Laws of Utah 1994, Chapter 26
149 76-9-301.1, as enacted by Laws of Utah 1987, Chapter 22
150 76-10-920, as last amended by Laws of Utah 1995, Chapter 291
151 76-10-1219, as last amended by Laws of Utah 1984, Chapter 66
152 76-10-2101, as enacted by Laws of Utah 1992, Chapter 245
153 77-7-5, as last amended by Laws of Utah 2002, Chapter 35
154 77-23a-4, as last amended by Laws of Utah 1994, Chapter 12
155 77-23a-10, as last amended by Laws of Utah 1994, Chapter 201
156 78B-7-113, as renumbered and amended by Laws of Utah 2008, Chapter 3
157
158 Be it enacted by the Legislature of the state of Utah:
159 Section 1. Section 3-1-2 is amended to read:
160 3-1-2. Definitions.
161 As used in this act, unless the context or subject matter requires otherwise:
162 [
163 forestry, nut, seed, ground stock, dairy, livestock, poultry, bee and any and all farm products.
164 [
165 [
166 domestic corporation, or a foreign association or corporation if authorized to do business in this
167 state, organized under any general or special act as a cooperative association for the mutual
168 benefit of its members, as agricultural producers, and which confines its operation to purposes
169 authorized by this act and restricts the return on the stock or membership capital and the
170 amount of its business with nonmembers to the limits placed thereon by this act for
171 associations organized hereunder.
172 [
173 [
174 laws of this state.
175 [
176 the laws of this state.
177 [
178 one class, in an association without stock and the holder of common stock in an association
179 organized with stock.
180 [
181 association.
182 [
183 association of such persons.
184 [
185 Act."
186 [
187 inasmuch as their primary object is not to pay dividends on invested capital, but to render
188 service and provide means and facilities by or through which the producers of agricultural
189 products may receive a reasonable and fair return for their products.
190 Section 2. Section 3-1-4 is amended to read:
191 3-1-4. Purposes.
192 Such association may be organized for the purpose of engaging in any cooperative
193 activity for producers of agricultural products in connection with:
194 [
195 harvesting, preserving, drying, processing, manufacturing, blending, canning, packing, ginning,
196 grading, storing, warehousing, handling, shipping, or utilizing such products, or manufacturing
197 or marketing the by-products thereof;
198 [
199 [
200 equipment, feed, fertilizer, coal, gasoline and other fuels, oils and other lubricants, seeds, and
201 all other agricultural and household supplies;
202 [
203 to its members and others;
204 [
205 basis, for or to its members; or
206 [
207 Section 3. Section 3-1-8 is amended to read:
208 3-1-8. Bylaws.
209 The members of the association shall adopt bylaws not inconsistent with law or the
210 articles, and they may alter and amend the same from time to time. Bylaws may be adopted,
211 amended or repealed, at any regular meeting, or at any special meeting called for that purpose,
212 by a majority vote of the members voting thereon. The bylaws may provide for:
213 [
214 members, and the number of members that shall constitute a quorum;
215 [
216 general and special meetings and by mail or by delegates elected by district groups or other
217 associations;
218 [
219 qualifications, compensation, duties and terms of office of directors and officers; the time of
220 their election and the mode and manner of giving notice thereof;
221 [
222 and executive committee, and the number that shall constitute a quorum;
223 [
224 association, the establishment of voting districts, the making of contracts, the issuance,
225 retirement, and transfer of stock, and the relative rights, interests and preferences of members
226 and shareholders;
227 [
228 [
229 the purposes of this act.
230 Section 4. Section 3-1-19 is amended to read:
231 3-1-19. Association not in restraint of trade -- Right to disseminate information.
232 [
233 conspiracy, or a combination in restraint of trade, or an illegal monopoly; or be deemed to have
234 been formed for the purpose of lessening competition or fixing prices arbitrarily, nor shall the
235 contracts between the association and its members, or any agreement authorized in this act, be
236 construed as an unlawful restraint of trade, or as part of a conspiracy or combination to
237 accomplish an improper or illegal purpose or act.
238 [
239 members, to other cooperative associations, and otherwise, past, present, and prospective crop,
240 market, statistical, economic, and other similar information relating to the business of the
241 association, either directly or through an agent created or selected by it or by other associations
242 acting in conjunction with it.
243 [
244 current and prospective production of agricultural commodities and its relation to the
245 prospective volume of consumption, selling prices and existing or potential surplus, to the end
246 that every market may be served from the most convenient productive areas under a program of
247 orderly marketing that will assure adequate supplies without undue enhancement of prices or
248 the accumulation of any undue surplus.
249 Section 5. Section 3-1-21 is amended to read:
250 3-1-21. Existing associations continued under chapter.
251 [
252 of this state providing for the incorporation of agricultural cooperative associations, for a
253 purpose for which an association may be formed under this act, and particularly to associations
254 formed under the Agricultural Cooperative Association Act, and all such associations shall
255 have and may exercise and enjoy all the rights, privileges, authority, powers, and capacity
256 heretofore granted, and all such associations shall have and may also exercise and enjoy all the
257 rights, privileges, authority, powers, and capacity granted or afforded under and in pursuance of
258 this act to the same extent and effect as though organized hereunder.
259 [
260 products under [
261 Associations, for purposes in this act provided, may bring itself under and within the terms of
262 this act as if organized hereunder and may thereafter operate in pursuance of the terms hereof,
263 and may exercise and enjoy all the rights, privileges, authority, powers, and capacity afforded
264 and provided for under the terms of this act, by filing with the Division of Corporations and
265 Commercial Code, a sworn statement signed by the president and secretary of such association,
266 to the effect that by resolution of the board of directors of such association duly adopted, such
267 association has elected to bring itself within the terms of this act.
268 Section 6. Section 3-1-45 is amended to read:
269 3-1-45. Sale, mortgage, and lease of assets.
270 (1) (a) The association may sell, lease, exchange, mortgage, pledge, dispose of, or
271 repay a debt with any of the property and assets of an association, if this action is made in the
272 usual and regular course of business of the association.
273 (b) The action taken under Subsection (1)(a) may be made upon the terms and
274 conditions and for consideration as are authorized by the board of directors.
275 (2) Consideration may include money or property, real or personal, including shares of
276 any other association or corporation, domestic or foreign, as is authorized by the association's
277 board of directors.
278 (3) If the articles of incorporation provide for the mortgage or pledge of the property of
279 the association by its directors, then the mortgage or pledge of all, or substantially all, of the
280 property or assets, with or without the good will of an association, is considered to be made in
281 the usual and regular course of its business.
282 (4) If the action taken under Subsection (1) is not made in the usual regular course of
283 the association's business, the action may still be taken if the following requirements are
284 complied with:
285 (a) The board of directors shall adopt a resolution recommending the action, and the
286 members shall vote at an annual or special meeting of members.
287 (b) Written or printed notice of the meeting shall be given to each member entitled to
288 vote as provided in this chapter.
289 (c) (i) At the meeting in which the action is considered, the members may authorize the
290 action described in Subsection (1) and set the terms, or may authorize the board of directors to
291 set the terms, conditions, and consideration to be received by the association.
292 (ii) A two-thirds majority vote of the members is required to approve the action
293 specified in Subsection (1).
294 (d) The board of directors may abandon the action, even if approved by the members,
295 subject to the rights of third parties under any related contracts, without further action or
296 approval by members.
297 Section 7. Section 4-1-8 is amended to read:
298 4-1-8. General definitions.
299 Subject to additional definitions contained in the chapters of this title which are
300 applicable to specific chapters, as used in this title:
301 (1) "Agriculture" means the science and art of the production of plants and animals
302 useful to man including the preparation of plants and animals for human use and disposal by
303 marketing or otherwise.
304 (2) "Agricultural product" or "product of agriculture" means any product which is
305 derived from agriculture, including any product derived from aquaculture as defined in Section
306 4-37-103 .
307 (3) "Commissioner" means the commissioner of agriculture and food.
308 (4) "Department" means the Department of Agriculture and Food created [
309
310 (5) "Dietary supplement" has the meaning defined in the Federal Food, Drug, and
311 Cosmetic Act, 21 U.S.C. Sec. 301 et seq.
312 (6) "Livestock" means cattle, sheep, goats, swine, horses, mules, poultry, domesticated
313 elk as defined in Section 4-39-102 , or any other domestic animal or domestic furbearer raised
314 or kept for profit.
315 (7) "Organization" means a corporation, government or governmental subdivision or
316 agency, business trust, estate, trust, partnership, association, two or more persons having a joint
317 or common interest, or any other legal entity.
318 (8) "Person" means a natural person or individual, corporation, organization, or other
319 legal entity.
320 Section 8. Section 4-8-4 is amended to read:
321 4-8-4. Department functions, powers, and duties.
322 The department has and shall exercise the following functions, powers, and duties, in
323 addition to those specified in Chapter 1 [
324 (1) general supervision over the marketing, sale, trade, advertising, storage, and
325 transportation practices, used in buying and selling products of agriculture in Utah;
326 (2) conduct and publish surveys and statistical analyses with its own resources or with
327 the resources of others through contract, regarding the cost of production for products of
328 agriculture, including transportation, processing, storage, advertising, and marketing costs;
329 regarding market locations, demands, and prices for such products; and regarding market
330 forecasts;
331 (3) assist and encourage producers of products of agriculture in controlling current and
332 prospective production and market deliveries in order to stabilize product prices at prices
333 which assure reasonable profits for producers and at the same time ensure adequate market
334 supplies; and
335 (4) actively solicit input from the public and from interested groups or associations,
336 through public hearings or otherwise, to assist in making fair determinations with respect to the
337 production, marketing, and consumption of products of agriculture.
338 Section 9. Section 4-16-2 is amended to read:
339 4-16-2. Definitions.
340 As used in this chapter:
341 (1) "Advertisement" means any representation made relative to seeds, plants, bulbs, or
342 ground stock other than those on the label of a seed container, disseminated in any manner.
343 (2) "Agricultural seeds" mean seeds of grass, forage plants, cereal crops, fiber crops,
344 sugar beets, seed potatoes, or any other kinds of seed or mixtures of seed commonly known
345 within this state as agricultural or field seeds.
346 (3) "Flower seeds" mean seeds of herbaceous plants grown for their blooms,
347 ornamental foliage, or other ornamental plants commonly known and sold under the name of
348 flower seeds in this state.
349 (4) "Foundation seed," "registered seed," or "certified seed" means seed that is
350 produced and labeled in accordance with procedures officially recognized by a seed certifying
351 agency approved and accredited in this state.
352 (5) (a) "Hybrid" means the first generation seed of a cross produced by controlling
353 pollination and by combining:
354 (i) two or more inbred lines;
355 (ii) one inbred or a single cross with an open-pollinated variety; or
356 (iii) two varieties or species, except open-pollinated varieties of corn, Zea mays.
357 (b) The second generation and subsequent generations from the crosses referred to in
358 Subsection (5)(a) are not to be regarded as hybrids.
359 (c) Hybrid designations shall be treated as variety names.
360 (6) "Kind" means one or more related species or subspecies of seed which singly or
361 collectively is known by one name, for example, corn, oats, alfalfa, and timothy.
362 (7) (a) "Label" means any written, printed, or graphic representation accompanying and
363 pertaining to any seeds, plants, bulbs, or ground stock whether in bulk or in containers.
364 (b) "Label" includes representations on invoices, bills, and letterheads.
365 (8) "Lot" means a definite quantity of seed identified by a number or other mark, every
366 part or bag of which is uniform within recognized tolerances.
367 (9) "Noxious-weed seeds" mean weed seeds declared noxious by the commissioner.
368 (10) "Pure seed," "germination," or other terms in common use for testing seeds for
369 purposes of labeling shall have ascribed to them the meaning set forth for such terms in the
370 most recent edition of "Rules for Seed Testing" published by the Association of Official Seed
371 Analysts.
372 (11) "Seeds for sprouting" means seeds sold for sprouting for salad or culinary
373 purposes.
374 (12) "Sowing" means the placement of agricultural seeds, vegetable seeds, flower
375 seeds, tree and shrub seeds, or seeds for sprouting in a selected environment for the purpose of
376 obtaining plant growth.
377 (13) "Treated" means seed that has received an application of a substance to reduce,
378 control, or repel certain disease organisms, fungi, insects or other pests which may attack the
379 seed or its seedlings, or has received some other treatment to improve its planting value.
380 (14) "Tree and shrub seeds" mean seeds of woody plants commonly known and sold
381 under the name of tree and shrub seeds in this state.
382 (15) "Variety" means a subdivision of a kind characterized by growth, yield, plant,
383 fruit, seed, or other characteristic, which differentiate it from other plants of the same kind.
384 (16) "Vegetable seeds" mean seeds of crops grown in gardens or on truck farms that
385 are generally known and sold under the name of vegetable seeds, plants, bulbs, and ground
386 stocks in this state.
387 (17) "Weed seeds" mean seeds of any plant generally recognized as a weed within this
388 state.
389 Section 10. Section 4-16-7 is amended to read:
390 4-16-7. Inspection -- Samples -- Analysis -- Seed testing facilities to be maintained
391 -- Rules to control offensive seeds -- Notice of offending seeds -- Warrants.
392 (1) (a) The department shall periodically enter public or private premises from which
393 seeds are distributed, offered, or exposed for sale to sample, inspect, analyze, and test
394 agricultural, vegetable, flower, or tree and shrub seeds or seeds for sprouting distributed within
395 this state to determine compliance with this chapter.
396 (b) To perform the duties specified in Subsection (1)(a), the department shall:
397 (i) establish and maintain facilities for testing the purity and germination of seeds;
398 (ii) prescribe by rule uniform methods for sampling and testing seeds; and
399 (iii) establish fees for rendering service.
400 (2) The department shall prescribe by rule weed seeds and noxious weed seeds and fix
401 the tolerances permitted for those offensive seeds.
402 (3) If a seed sample, upon analysis, fails to comply with this chapter, the department
403 shall give written notice to that effect to any person who is distributing, offering, or exposing
404 the seeds for sale. Nothing in this chapter, however, shall be construed as requiring the
405 department to refer minor violations for criminal prosecution or for the institution of
406 condemnation proceedings if it believes the public interest will best be served through informal
407 action.
408 (4) The department may proceed immediately, if admittance is refused, to obtain an ex
409 parte warrant from the nearest court of competent jurisdiction to allow entry upon the premises
410 for the purpose of making inspections and obtaining samples.
411 Section 11. Section 4-17-3.5 is amended to read:
412 4-17-3.5. Creation of State Weed Committee -- Membership -- Powers and duties
413 -- Expenses.
414 (1) There is created a State Weed Committee composed of five members, one member
415 representing each of the following:
416 (a) the Department of Agriculture and Food;
417 (b) the Utah State University Agricultural Experiment Station;
418 (c) the Utah State University Extension Service;
419 (d) the Utah Association of Counties; and
420 (e) private agricultural industry.
421 (2) The commissioner shall select the members of the committee from those nominated
422 by each of the respective groups or agencies following approval by the Agricultural Advisory
423 Board.
424 (3) (a) Except as required by Subsection (3)(b), as terms of current committee members
425 expire, the commissioner shall appoint each new member or reappointed member to a four-year
426 term.
427 (b) Notwithstanding the requirements of Subsection (3)(a), the commissioner shall, at
428 the time of appointment or reappointment, adjust the length of terms to ensure that the terms of
429 committee members are staggered so that approximately half of the committee is appointed
430 every two years.
431 (4) (a) Members may be removed by the commissioner for cause.
432 (b) When a vacancy occurs in the membership for any reason, the replacement shall be
433 appointed for the unexpired term.
434 (5) The State Weed Committee shall:
435 (a) confer and advise on matters pertaining to the planning, implementation, and
436 administration of the state noxious weed program;
437 (b) recommend names for membership on the committee; and
438 (c) serve as members of the executive committee of the Utah Weed Control
439 Association.
440 (6) (a) (i) Members who are not government employees shall receive no compensation
441 or benefits for their services, but may receive per diem and expenses incurred in the
442 performance of the member's official duties at the rates established by the Division of Finance
443 under Sections 63A-3-106 and 63A-3-107 .
444 (ii) Members may decline to receive per diem and expenses for their service.
445 (b) (i) State government officer and employee members who do not receive salary, per
446 diem, or expenses from their agency for their service may receive per diem and expenses
447 incurred in the performance of their official duties from the committee at the rates established
448 by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
449 (ii) State government officer and employee members may decline to receive per diem
450 and expenses for their service.
451 (c) (i) Higher education members who do not receive salary, per diem, or expenses
452 from the entity that they represent for their service may receive per diem and expenses incurred
453 in the performance of their official duties from the committee at the rates established by the
454 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
455 (ii) Higher education members may decline to receive per diem and expenses for their
456 service.
457 (d) (i) Local government members who do not receive salary, per diem, or expenses
458 from the entity that they represent for their service may receive per diem and expenses incurred
459 in the performance of their official duties at the rates established by the Division of Finance
460 under Sections 63A-3-106 and 63A-3-107 .
461 (ii) Local government members may decline to receive per diem and expenses for their
462 service.
463 Section 12. Section 4-19-2 is amended to read:
464 4-19-2. Department authorized to approve and make grants and loans, acquire
465 property, or lease or operate property.
466 The department, in conjunction with the administration of the rural rehabilitation
467 program, may:
468 (1) approve and make a loan to a farm or agricultural cooperative association regulated
469 under Title 3, [
470 Cooperative Association Act, subject to Section 4-19-3 , including:
471 (a) taking security for the loan through a mortgage, trust deed, pledge, or other security
472 device;
473 (b) purchasing a promissory note, real estate contract, mortgage, trust deed, or other
474 instrument or evidence of indebtedness; and
475 (c) collecting, compromising, canceling, or adjusting a claim or obligation arising out
476 of the administration of the rural rehabilitation program;
477 (2) purchase or otherwise obtain property in which the department has acquired an
478 interest on account of a mortgage, trust deed, lien, pledge, assignment, judgment, or other
479 means at any execution or foreclosure sale;
480 (3) operate or lease, if necessary to protect its investment, property in which it has an
481 interest or sell or otherwise dispose of the property; and
482 (4) approve and make an education loan or an education grant to an individual for the
483 purpose of attending a vocational school, college, or university to obtain additional education,
484 qualifications, or skills.
485 Section 13. Section 4-23-4 is amended to read:
486 4-23-4. Agricultural and Wildlife Damage Prevention Board created --
487 Composition -- Appointment -- Terms -- Vacancies -- Compensation.
488 (1) There is created an Agricultural and Wildlife Damage Prevention Board composed
489 of the commissioner and the director of the Division of Wildlife Resources, who shall serve,
490 respectively, as the board's chair and vice chair, together with seven other members appointed
491 by the governor to four-year terms of office as follows:
492 (a) one sheep producer representing wool growers of the state;
493 (b) one cattle producer representing range cattle producers of the state;
494 (c) one person from the United States Department of Agriculture;
495 (d) one agricultural landowner representing agricultural landowners of the state;
496 (e) one person representing wildlife interests in the state;
497 (f) one person from the United States Forest Service; and
498 (g) one person from the United States Bureau of Land Management.
499 (2) Appointees' term of office shall commence June 1.
500 (3) (a) Except as required by Subsection (3)(b), as terms of current board members
501 expire, the governor shall appoint each new member or reappointed member to a four-year
502 term.
503 (b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the
504 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
505 board members are staggered so that approximately half of the board is appointed every two
506 years.
507 (4) When a vacancy occurs in the membership for any reason, the replacement shall be
508 appointed for the unexpired term.
509 (5) Attendance of five members at a duly called meeting shall constitute a quorum for
510 the transaction of official business. The board shall convene at the times and places prescribed
511 by the chair or vice chair.
512 (6) (a) (i) Members who are not government employees shall receive no compensation
513 or benefits for their services, but may receive per diem and expenses incurred in the
514 performance of the member's official duties at the rates established by the Division of Finance
515 under Sections 63A-3-106 and 63A-3-107 .
516 (ii) Members may decline to receive per diem and expenses for their service.
517 (b) (i) State government officer and employee members who do not receive salary, per
518 diem, or expenses from their agency for their service may receive per diem and expenses
519 incurred in the performance of their official duties from the board at the rates established by the
520 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
521 (ii) State government officer and employee members may decline to receive per diem
522 and expenses for their service.
523 Section 14. Section 4-24-4 is amended to read:
524 4-24-4. Livestock Brand Board created -- Composition -- Terms -- Removal --
525 Quorum for transaction of business -- Compensation -- Duties.
526 (1) There is created the Livestock Brand Board consisting of seven members appointed
527 by the governor as follows:
528 (a) four cattle ranchers recommended by the Utah Cattlemen's Association, one of
529 whom shall be a feeder operator;
530 (b) one dairyman recommended by the Utah Dairymen's Association;
531 (c) one livestock market operator recommended jointly by the Utah Cattlemen's
532 Association and the Utah Dairymen's Association and the Livestock Market Association; and
533 (d) one horse breeder recommended by the Utah Horse Council.
534 (2) If a nominee is rejected by the governor, the recommending association shall
535 submit another nominee.
536 (3) (a) Except as required by Subsection (3)(b), as terms of current board members
537 expire, the governor shall appoint each new member or reappointed member to a four-year
538 term.
539 (b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the
540 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
541 board members are staggered so that approximately half of the board is appointed every two
542 years.
543 (4) (a) A member may, at the discretion of the governor, be removed at the request of
544 the association that recommended the appointment.
545 (b) When a vacancy occurs in the membership for any reason, the replacement shall be
546 appointed for the unexpired term.
547 (5) One member elected by the board shall serve as chair for a term of one year and be
548 responsible for the call and conduct of meetings of the Livestock Brand Board. Attendance of
549 a simple majority of the members at a duly called meeting shall constitute a quorum for the
550 transaction of official business.
551 (6) (a) Members shall receive no compensation or benefits for their services, but may
552 receive per diem and expenses incurred in the performance of the member's official duties at
553 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
554 (b) Members may decline to receive per diem and expenses for their service.
555 (7) The Livestock Brand Board with the cooperation of the department shall direct the
556 procedures and policies to be followed in administering and enforcing this chapter.
557 Section 15. Section 4-24-10 is amended to read:
558 4-24-10. Livestock on open range or outside enclosure to be marked or branded
559 -- Cattle upon transfer of ownership to be marked or branded -- Exceptions.
560 (1) (a) Except as provided in Subsections (1)(b) and [
561 upon an open range in this state or outside an enclosure unless they bear a brand or mark
562 recorded in accordance with this chapter.
563 (b) Swine, goats, and unweaned calves or colts are not required to bear a brand or mark
564 to forage upon open range or outside an enclosure.
565 (c) Domesticated elk may not forage upon open range or outside an enclosure under
566 any circumstances as provided in Chapter 39 [
567 (2) (a) Except as provided in Subsection (2)(b), all cattle, upon sale or other transfer of
568 ownership, shall be branded or marked with the recorded brand or mark of the new owner
569 within 30 days after transfer of ownership.
570 (b) No branding or marking, upon change of ownership, is required within the 30-day
571 period for:
572 (i) unweaned calves;
573 (ii) registered or certified cattle;
574 (iii) youth project calves, if the number transferred is less than five; or
575 (iv) dairy cattle held on farms.
576 Section 16. Section 4-32-4 is amended to read:
577 4-32-4. License required to operate slaughterhouse -- Slaughtering livestock
578 except in slaughterhouse prohibited -- Exceptions -- Violation a misdemeanor.
579 (1) No person shall operate a slaughterhouse in this state without a license issued by
580 the department, nor shall any person, except in a licensed slaughterhouse, slaughter livestock as
581 a business or assist other persons in the slaughter of livestock except as otherwise provided in
582 Subsection (2) or (3).
583 (2) Except as provided in Subsection (3), a person who raises his own livestock or an
584 employee of that person may slaughter livestock without a farm custom slaughter permit if:
585 (a) the livestock is slaughtered on property owned by that person;
586 (b) the livestock product derived from the slaughtered animal is consumed exclusively
587 by that person or his immediate family, regular employees of that person, or nonpaying guests;
588 and
589 (c) the livestock product is marked "Not For Sale."
590 (3) Domesticated elk may only be slaughtered as provided in this chapter and in
591 Chapter 39 [
592 (4) Farm custom slaughter may be performed by a person who holds a valid farm
593 custom slaughter permit.
594 (5) Any person who violates this section, except as otherwise provided in Subsection
595 [
596 (6) Any person who offers for sale or sells any uninspected livestock product is guilty
597 of a class B misdemeanor.
598 Section 17. Section 4-32-7 is amended to read:
599 4-32-7. Mandatory functions, powers, and duties of department prescribed.
600 The department shall make rules pursuant to Title 63G, Chapter 3, Utah Administrative
601 Rulemaking Act, regarding the following functions, powers, and duties, in addition to those
602 specified in [
603 for the administration and enforcement of this chapter:
604 (1) The department shall require antemortem and postmortem inspections, quarantine,
605 segregation, and reinspections by inspectors appointed for those purposes with respect to the
606 slaughter of livestock and poultry and the preparation of livestock and poultry products at
607 official establishments, except as provided in Subsection 4-32-8 (13).
608 (2) The department shall require that:
609 (a) livestock and poultry be identified for inspection purposes;
610 (b) livestock or poultry products, or their containers be marked or labeled as:
611 (i) "Utah Inspected and Passed" if, upon inspection, the products are found to be
612 unadulterated; and
613 (ii) "Utah Inspected and Condemned" if, upon inspection, the products are found to be
614 adulterated; and
615 (c) condemned products, which otherwise would be used for human consumption, be
616 destroyed under the supervision of an inspector.
617 (3) The department shall prohibit or limit livestock products, poultry products, or other
618 materials not prepared under inspection procedures provided in this chapter, from being
619 brought into official establishments.
620 (4) The department shall require that labels and containers for livestock and poultry
621 products:
622 (a) bear all information required under Section 4-32-3 if the product leaves the official
623 establishment; and
624 (b) be approved prior to sale or transportation.
625 (5) For official establishments required to be inspected under Subsection (1), the
626 department shall:
627 (a) prescribe sanitary standards;
628 (b) require experts in sanitation or other competent investigators to investigate sanitary
629 conditions; and
630 (c) refuse to provide inspection service if the sanitary conditions allow adulteration of
631 any livestock or poultry product.
632 (6) (a) The department shall require that any person engaged in a business referred to in
633 Subsection (6)(b) shall:
634 (i) keep accurate records disclosing all pertinent business transactions;
635 (ii) allow inspection of the business premises at reasonable times and examination of
636 inventory, records, and facilities; and
637 (iii) allow inventory samples to be taken after payment of their fair market value.
638 (b) Subsection (6)(a) shall refer to any person who:
639 (i) slaughters livestock or poultry;
640 (ii) prepares, freezes, packages, labels, buys, sells, transports, or stores any livestock or
641 poultry products for human or animal consumption;
642 (iii) renders livestock or poultry; or
643 (iv) buys, sells, or transports any dead, dying, disabled, or diseased livestock or poultry,
644 or parts of their carcasses that died by a method other than slaughter.
645 (7) (a) The department shall:
646 (i) adopt by reference rules and regulations under federal acts with changes that the
647 commissioner considers appropriate to make the rules and regulations applicable to operations
648 and transactions subject to this chapter; and
649 (ii) promulgate any other rules considered necessary for the efficient execution of the
650 provisions of this chapter, including rules of practice providing an opportunity for hearing in
651 connection with the issuance of orders under Subsection (5) or under Subsection 4-32-8 (1), (2),
652 or (3) and prescribing procedures for proceedings in these cases.
653 (b) These procedures shall not preclude requiring that a label or container be withheld
654 from use, or inspection be refused under Subsections (1) and (5), or Subsection 4-32-8 (3),
655 pending issuance of a final order in the proceeding.
656 (8) (a) To prevent the inhumane slaughtering of livestock and poultry, inspectors shall
657 be appointed to examine and inspect methods of handling and slaughtering livestock and
658 poultry.
659 (b) Inspection of new slaughtering establishments may be refused or temporarily
660 suspended if livestock or poultry have been slaughtered or handled by any method not in
661 accordance with the Humane Methods of Slaughter Act of 1978, Public Law 95-445.
662 (9) (a) The department shall require all livestock and poultry showing symptoms of
663 disease during antemortem inspection, performed by an inspector appointed for that purpose, to
664 be set apart and slaughtered separately from other livestock and poultry.
665 (b) When slaughtered, the carcasses of livestock and poultry shall be subject to careful
666 examination and inspection in accordance with rules prescribed by the commissioner.
667 Section 18. Section 4-38-8 is amended to read:
668 4-38-8. Stewards.
669 (1) (a) The commission may delegate authority to enforce its rules and this chapter to
670 three stewards employed by the commission at each recognized race meet. At least one of them
671 shall be selected by the commission.
672 (b) Stewards shall exercise reasonable and necessary authority as designated by rules of
673 the commission including the following:
674 (i) enforce rules of the commission;
675 (ii) rule on the outcome of events;
676 (iii) evict from an event any person who has been convicted of bookmaking, bribery, or
677 attempts to alter the outcome of any race through tampering with any animal that is not in
678 accordance with this chapter or the rules of the commission;
679 (iv) levy fines not to exceed $2,500 for violations of rules of the commission, which
680 fines shall be reported daily and paid to the commission within 48 hours of imposition and
681 notice;
682 (v) suspend licenses not to exceed one year for violations of rules of the commission,
683 which suspension shall be reported to the commission daily; and
684 (vi) recommend that the commission impose fines or suspensions greater than
685 permitted by Subsections (1)(b)(iv) and (v).
686 (2) If a majority of the stewards agree, they may impose fines or suspend licenses.
687 (3) (a) Any fine or license suspension imposed by a steward may be appealed in writing
688 to the commission within five days after its imposition. The commission may affirm or reverse
689 the decision of a steward or may increase or decrease any fine or suspension.
690 (b) A fine imposed by the commission under this section or Section 4-38-9 may not
691 exceed $10,000.
692 (c) Suspensions of a license may be for any period of time but shall be commensurate
693 with the seriousness of the offense.
694 Section 19. Section 7-2-7 is amended to read:
695 7-2-7. Stay of proceedings against institution -- Relief.
696 (1) Except as otherwise specified, a taking of an institution or other person by the
697 commissioner or a receiver or liquidator appointed by the commissioner under this chapter
698 operates as a stay of the commencement or continuation of the following with respect to the
699 institution:
700 (a) any judicial, administrative, or other proceeding, including service of process;
701 (b) the enforcement of any judgment;
702 (c) any act to obtain possession of property;
703 (d) any act to create, perfect, or enforce any lien against property of the institution;
704 (e) any act to collect, assess, or recover a claim against the institution; and
705 (f) the setoff of any debt owing to the institution against any claim against the
706 institution.
707 (2) Except as provided in Subsections (3), (4), (5), and (8):
708 (a) the stay of any action against property of the institution continues until the
709 institution has no interest in the property; and
710 (b) the stay of any other action continues until the earlier of when the case is:
711 (i) closed; or
712 (ii) dismissed.
713 (3) On the motion of any party in interest and after notice and a hearing, the court may
714 terminate, annul, modify, condition, or otherwise grant relief from the stay:
715 (a) for cause, including the lack of adequate protection of an interest in property of the
716 party in interest; or
717 (b) with respect to a stay of any action against property if:
718 (i) the institution does not have an equity interest in the property; and
719 (ii) the property would have no value in a reorganization or liquidation of the
720 institution.
721 (4) (a) Thirty days after a request under Subsection (3) for relief from the stay of any
722 act against property of the institution, the stay is terminated with respect to the party in interest
723 making the request unless the court, after notice and a hearing, orders the stay continued in
724 effect pending the conclusion of, or as a result of, a final hearing and determination under
725 Subsection (3).
726 (b) A hearing under this Subsection (4) may be:
727 (i) a preliminary hearing; or
728 (ii) consolidated with the final hearing under Subsection (3).
729 (c) The court shall order the stay continued in effect pending the conclusion of the final
730 hearing under Subsection (3) if there is a reasonable likelihood that the party opposing relief
731 from the stay will prevail at the conclusion of the final hearing.
732 (d) If the hearing under this Subsection (4) is a preliminary hearing, the final hearing
733 shall be commenced not later than 30 days after the conclusion of the preliminary hearing.
734 (5) Upon request of a party in interest, the court, with or without a hearing, may grant
735 relief from the stay provided under Subsection (1) to the extent necessary to prevent irreparable
736 damage to the interest of an entity in property, if the interest will or could be damaged before
737 there is an opportunity for notice and a hearing under Subsection (3) or (4).
738 (6) In any hearing under Subsection (3) or (4) concerning relief from the stay of any act
739 under Subsection (1):
740 (a) the party requesting relief has the burden of proof on the issue of the institution's
741 equity in property; and
742 (b) the party opposing relief has the burden of proof on all other issues.
743 (7) A person injured by any willful violation of a stay provided by this section shall
744 recover actual damages, including costs and attorneys' fees and, when appropriate, may recover
745 punitive damages.
746 (8) Nothing in this section prevents the holder or the trustee for any holder of any bond,
747 note, debenture, or other evidence of indebtedness issued by a city, county, municipal
748 corporation, commission, district, authority, agency, subdivision, or other public body pursuant
749 to Title 11, Chapter 17, Utah Industrial Facilities and Development Act, from exercising any
750 rights it may have to sell, take possession of, foreclose upon, or enforce a lien against or
751 security interest in property of an institution that has been pledged, assigned, or mortgaged as
752 collateral for that bond, note, debenture, or evidence of indebtedness, or as collateral for a letter
753 of credit or other instrument issued in support of that bond, note, debenture, or evidence of
754 indebtedness.
755 (9) Notice of any hearing under this section shall be served as provided in Subsection
756 7-2-9 (6).
757 Section 20. Section 7-7-15 is amended to read:
758 7-7-15. Fiduciary relationship of directors and officers to association --
759 Disclosure requirements -- Prohibitions -- Violations as misdemeanors.
760 (1) (a) Directors and officers occupy fiduciary relationships to the association of which
761 they are directors or officers. No director or officer may engage or participate, directly or
762 indirectly, in any business or transaction conducted on behalf of or involving the association,
763 which would result in a conflict of his own personal interests with those of the association
764 which he serves, unless:
765 (i) the business or transactions are conducted in good faith and are honest, fair, and
766 reasonable to the association;
767 (ii) a full disclosure of the business or transactions and the nature of the director's or
768 officer's interest is made to the board of directors;
769 (iii) the business or transactions are approved in good faith by the board of directors,
770 any interested director abstaining; and
771 (iv) the business or transactions do not represent a breach of the officer's or director's
772 fiduciary duty and are not fraudulent, illegal, or ultra vires.
773 (b) Without limitation by any of the specific provisions of this section, the supervisor
774 may require the disclosure by directors, officers and employees of their personal interest, direct
775 or indirect, in any business or transaction on behalf of or involving the association and of their
776 control of or active participation in enterprises having activities related to the business of the
777 association.
778 (2) The following express restrictions governing the conduct of directors and officers
779 of associations shall apply, but shall not be construed in any manner as excusing those persons
780 from the observance of any other aspect of the general fiduciary duty owed by them to the
781 association which they serve:
782 (a) No officer or director of an association may, without the prior written approval of
783 the commissioner, serve as a director or officer of another savings institution, the principal
784 office of which is located in the same community as an office of the association, unless he
785 served as director or officer of both institutions before the effective date of this act.
786 (b) A director may not receive remuneration as a director, except reasonable fees for
787 service as a director or for service as a member of a committee of directors. This Subsection
788 (2)(b) does not prohibit or in any way limit any right of a director who is also an officer,
789 employee, or attorney for the association to receive compensation for service as an officer,
790 employee, or attorney.
791 (c) No director or officer may have any interest, directly or indirectly, in the proceeds
792 of a loan or investment or of a purchase or sale made by the association, unless the loan,
793 investment, purchase, or sale is authorized expressly by resolution of the board of directors,
794 and unless the resolution is approved by vote of at least two-thirds of the directors authorized
795 of the association, any interested director taking no part in the vote.
796 (d) No director or officer may have any interest, direct or indirect, in the purchase at
797 less than its face value of any evidence of a savings account, deposit or other indebtedness
798 issued by the association.
799 (e) An association or a director, officer, or employee of an association may not require,
800 as a condition to the granting of any loan or the extension of any other service by the
801 association, that the borrower or any other person undertake a contract of insurance or any
802 other agreement or understanding with respect to the furnishing of any other goods or services,
803 with any specific company, agency, or individual.
804 (f) No officer or director acting as proxy for a member or stockholder of an association
805 may exercise, transfer, or delegate the proxy vote or votes in consideration of a private benefit
806 or advantage, direct or indirect, accruing to himself, nor may he surrender control or pass his
807 office to any other for any consideration of a private benefit or advantage, direct or indirect.
808 The voting rights of members and directors may not be the subject of sale, barter, exchange, or
809 similar transaction, either directly or indirectly. Any officer or director who violates this
810 Subsection (2)(f) shall be held accountable to the association for any increment.
811 (g) No director or officer may solicit, accept, or agree to accept, directly or indirectly,
812 from any person other than the association any gratuity, compensation or other personal benefit
813 for any action taken by the association or for endeavoring to procure any such action.
814 (h) Any person violating any of the specific prohibitions set forth in Subsections (2)(a)
815 through (g) is guilty of a class C misdemeanor.
816 Section 21. Section 7-9-30 is amended to read:
817 7-9-30. Reserve requirements -- "Risk assets" defined.
818 (1) As used in this section, the words "risk assets" means all assets except the
819 following:
820 (a) cash on hand;
821 (b) deposits and shares in federal or state banks, savings and loan associations, and
822 credit unions;
823 (c) assets which are insured by any agency of the federal government, the Federal
824 National Mortgage Association, or the Government Mortgage Association;
825 (d) loans to students insured under Title IV, Part B of the Higher Education Act of
826 1965, 20 U.S.C. Sections 1071 et seq. or similar state insurance programs;
827 (e) loans insured under Title 1 of the National Housing Act, 12 U.S.C. Sections 1702
828 et seq. by the Federal Housing Administration;
829 (f) shares or deposits in corporate credit unions as provided in Section 7-9-44 , or of any
830 other state act, or of the Federal Credit Union Act;
831 (g) accrued interest on nonrisk investments; and
832 (h) loans fully guaranteed by shares or deposits.
833 (2) At the end of each accounting period, after payment of any interest refunds, the
834 credit union shall determine the gross income from member loans and from this amount shall
835 set aside a regular reserve in accordance with Subsections (2)(a), (b), and (c).
836 (a) A credit union in operation for more than four years and having assets of $500,000
837 or more shall set aside a minimum of 10% of gross income from member loans until the
838 regular reserve equals at least 4% of the total of outstanding loans and risk assets, then a
839 minimum of 5% of gross income from member loans until the regular reserve equals at least
840 6% of the total of outstanding loans and risk assets.
841 (b) A credit union in operation for less than four years or having assets of less than
842 $500,000 shall set aside a minimum of 10% of gross income from member loans until the
843 regular reserve equals at least 7-1/2% of the total of outstanding loans and risk assets, then a
844 minimum of 5% of gross income from member loans until the regular reserve equals at least
845 10% of the total of outstanding loans and risk assets.
846 (c) The regular reserve belongs to the credit union and shall be used to build equity and
847 to meet contingencies or losses when authorized by the commissioner or the supervisor of
848 credit unions.
849 (d) The commissioner may temporarily reduce or waive the requirements for the
850 regular reserve placement if he finds it to be in the best interest of the credit union.
851 Section 22. Section 7-9-43 is amended to read:
852 7-9-43. Board of Credit Union Advisors.
853 There is created a Board of Credit Union Advisors of five members to be appointed by
854 the governor.
855 (1) Members of the board shall be individuals who are familiar with and associated in
856 the field of credit unions.
857 (2) At least three of the members shall be persons who have had three or more years of
858 experience as a credit union officer and shall be selected from a list submitted to the governor
859 by the Utah League of Credit Unions.
860 (3) The board shall meet quarterly.
861 (4) A chair of the advisory board shall be chosen each year from the membership of the
862 advisory board by a majority of the members present at the board's first meeting each year.
863 (5) (a) Except as required by Subsection (5)(b), as terms of current board members
864 expire, the governor shall appoint each new member or reappointed member to a four-year
865 term.
866 (b) Notwithstanding the requirements of Subsection (5)(a), the governor shall, at the
867 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
868 board members are staggered so that approximately half of the board is appointed every two
869 years.
870 (6) When a vacancy occurs in the membership for any reason, the replacement shall be
871 appointed for the unexpired term.
872 (7) All members shall serve until their successors are appointed and qualified.
873 (8) (a) Members shall receive no compensation or benefits for their services, but may
874 receive per diem and expenses incurred in the performance of the member's official duties at
875 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
876 (b) Members may decline to receive per diem and expenses for their service.
877 (9) Meetings of the advisory board shall be held on the call of the chair. A majority of
878 the members of the board shall constitute a quorum.
879 (10) The Board of Credit Union Advisors has the duty to advise the governor and
880 commissioner on problems relating to credit unions and to foster the interest and cooperation of
881 credit unions in the improvement of their services to the people of the state of Utah.
882 Section 23. Section 7-9-53 is amended to read:
883 7-9-53. Grandfathering.
884 (1) As used in this section:
885 (a) "Association that resides in a domicile-county" means an association that:
886 (i) operates a place of business or other physical location in the domicile-county; or
887 (ii) has at least 100 members that are residents of the domicile-county.
888 (b) "Domicile-county" means the county:
889 (i) in the field of membership of the credit union as of January 1, 1999; and
890 (ii) in which the credit union has located the greatest number of branches as of January
891 1, 1999.
892 (c) "Grandfathered field of membership" means the field of membership as of May 3,
893 1999, of a credit union described in Subsection (2)(d).
894 (2) For each credit union formed before January 1, 1999, its field of membership as of
895 May 3, 1999, is determined as follows:
896 (a) if the field of membership stated in the bylaws of the credit union as of January 1,
897 1999, complies with Section 7-9-51 , the credit union's field of membership is the field of
898 membership indicated in its bylaws;
899 (b) (i) the field of membership of a credit union as of May 3, 1999, is as provided in
900 Subsection (2)(b)(ii) if:
901 (A) the field of membership stated in the bylaws of the credit union as of January 1,
902 1999, includes the residents of more than one county; and
903 (B) as of January 1, 1999, the credit union's main office and any of its branches are
904 located in only one county in its field of membership;
905 (ii) as of May 3, 1999, the field of membership of a credit union described in
906 Subsection (2)(b)(i) is:
907 (A) the immediate family of a member of the credit union;
908 (B) the employees of the credit union;
909 (C) residents of the one county in which the credit union has its main office or
910 branches as of January 1, 1999[
911 (D) any association that as of January 1, 1999, is in the field of membership of the
912 credit union;
913 (c) (i) the field of membership of a credit union as of May 3, 1999, is as provided in
914 Subsection (2)(c)(ii) if:
915 (A) the field of membership of a credit union stated in the bylaws of the credit union as
916 of January 1, 1999, includes residents of more than one county;
917 (B) as of January 1, 1999, the credit union has a main office or branch in more than one
918 county; and
919 (C) as a result of a merger pursuant to a supervisory action under Chapter 2, Possession
920 of Depository Institution by Commissioner, or Chapter 19, Acquisition of Failing Depository
921 Institutions or Holding Companies, that is effective on or after January 1, 1983, but before
922 January 1, 1994, the credit union acquired a branch in a county in the field of membership of
923 the credit union and the credit union did not have a branch in the county before the merger;
924 (ii) as of May 3, 1999, the field of membership of a credit union described in
925 Subsection (2)(c)(i) is the same field of membership that the credit union would have had
926 under Subsection (2)(d) except that the credit union:
927 (A) is not subject to Subsection (3); and
928 (B) is subject to Subsection (4)(b); and
929 (d) (i) the field of membership of a credit union as of May 3, 1999, is as provided in
930 Subsection (2)(d)(ii) if:
931 (A) the field of membership stated in the bylaws of the credit union as of January 1,
932 1999, includes the residents of more than one county; and
933 (B) as of January 1, 1999, the credit union has a main office or branch in more than one
934 county;
935 (ii) as of May 3, 1999, the field of membership of a credit union described in
936 Subsection (2)(d)(i) is:
937 (A) the immediate family of a member of the credit union;
938 (B) the employees of the credit union;
939 (C) residents of the credit union's domicile-county;
940 (D) the residents of any county other than the domicile-county:
941 (I) if, as of January 1, 1999, the county is in the field of membership of the credit
942 union; and
943 (II) in which, as of January 1, 1994, the credit union had located its main office or a
944 branch; and
945 (E) any association that as of January 1, 1999, is in the field of membership of the
946 credit union.
947 (3) If a credit union's field of membership is as described in Subsection (2)(d),
948 beginning May 3, 1999, the credit union:
949 (a) within the credit union's domicile-county, may establish, relocate, or otherwise
950 change the physical location of the credit union's:
951 (i) main office; or
952 (ii) branch;
953 (b) within a county other than a domicile-county that is in the credit union's
954 grandfathered field of membership, may not:
955 (i) establish a main office or branch that:
956 (A) was not located in the county as of January 1, 1999; or
957 (B) for which the credit union has not received by January 1, 1999, approval or
958 conditional approval of a site plan for the main office or branch from the planning commission
959 of the municipality where the main office or branch will be located;
960 (ii) participate in a service center in which it does not participate as of January 1, 1999;
961 (iii) relocate the credit union's main office or a branch located in the county as of
962 January 1, 1999, unless the commissioner finds that the main office or branch is relocated
963 within a three-mile radius of where it was originally located; or
964 (iv) after a voluntary merger under Section 7-9-39 , operate a branch in the county if:
965 (A) the effective date of the merger is on or after May 5, 2003;
966 (B) the credit union with the field of membership described in Subsection (2)(d) is the
967 surviving credit union after the merger; and
968 (C) the credit union did not own and operate the branch before the effective date of the
969 merger; and
970 (c) may only admit as a member:
971 (i) a person in the credit union's grandfathered field of membership; or
972 (ii) a person belonging to an association that:
973 (A) is added to the field of membership of the credit union; and
974 (B) resides in the domicile-county of the credit union.
975 (4) (a) If a credit union's field of membership is as described in Subsection (2)(b), as of
976 May 3, 1999, the credit union may operate as a credit union having a field of membership
977 under Section 7-9-51 .
978 (b) If a credit union's field of membership is as described in Subsection (2)(c), as of
979 May 3, 1999, the credit union:
980 (i) within the credit union's domicile-county, may establish, relocate, or otherwise
981 change the physical location of the credit union's:
982 (A) main office; or
983 (B) branch;
984 (ii) within a county other than its domicile-county that is in the credit union's field of
985 membership under Subsection (2)(c), may not:
986 (A) establish a main office or branch that was not located in the county as of January 1,
987 1999;
988 (B) participate in a service center in which it does not participate as of January 1, 1999;
989 or
990 (C) relocate the credit union's main office or a branch located in the county as of
991 January 1, 1999, unless the commissioner finds that the main office or branch is relocated
992 within a three-mile radius of where it was originally located; and
993 (iii) may only admit as a member:
994 (A) a person in the credit union's field of membership under Subsection (2)(c); or
995 (B) a person belonging to an association that is added to the field of membership of the
996 credit union, regardless of whether the association resides in the domicile-county of the credit
997 union.
998 (5) (a) Notwithstanding Subsections (1) through (4), after May 3, 1999, a credit union
999 described in Subsection (2)(c) or [
1000 (i) operate an office or branch that is operated by the credit union on May 3, 1999, but
1001 that is not located in a county that is in the credit union's field of membership as of May 3,
1002 1999; and
1003 (ii) serve a member who is not in a credit union's field of membership as of May 3,
1004 1999, if the member is a member of the credit union as of March 15, 1999.
1005 (b) Subsection (5)(a) does not authorize a credit union to:
1006 (i) establish a branch in a county that is not in the credit union's field of membership as
1007 of May 3, 1999, unless the branch meets the requirements under this title for establishing a
1008 branch; or
1009 (ii) for a credit union described in Subsection (2)(d), include in its field of membership
1010 an association that:
1011 (A) as of January 1, 1999, is not included in the credit union's field of membership; and
1012 (B) does not reside within the credit union's domicile-county.
1013 (6) A credit union shall amend its bylaws in accordance with Section 7-9-11 by no later
1014 than August 3, 1999, to comply with this section.
1015 (7) In addition to any requirement under this section, a credit union shall comply with
1016 any requirement under this title for the establishment, relocation, or change in the physical
1017 location of a main office or branch of a credit union.
1018 Section 24. Section 7-15-2 is amended to read:
1019 7-15-2. Notice -- Form.
1020 (1) (a) "Notice" means notice given to the issuer of a check either orally or in writing.
1021 (b) Written notice may be given by United States mail that is:
1022 (i) first class; and
1023 (ii) postage prepaid.
1024 (c) Notwithstanding Subsection (1)(b), written notice is conclusively presumed to have
1025 been given when the notice is:
1026 (i) properly deposited in the United States mail;
1027 (ii) postage prepaid;
1028 (iii) certified or registered mail;
1029 (iv) return receipt requested; and
1030 (v) addressed to the signer at the signer's:
1031 (A) address as it appears on the check; or
1032 (B) last-known address.
1033 (2) Written notice under Subsection 7-15-1 (5) shall take substantially the following
1034 form:
1035 "Date: ____
1036 To: _____
1037 You are hereby notified that the check(s) described below issued by you has (have)
1038 been returned to us unpaid:
1039 Check date: ____
1040 Check number: ____
1041 Originating institution: ____
1042 Amount: ____
1043 Reason for dishonor (marked on check): ____
1044 In accordance with Section 7-15-1 , Utah Code Annotated, you are liable for this check
1045 together with a service charge of $20, which must be paid to the undersigned.
1046 If you do not pay the check amount and the $20 service charge within 15 calendar days
1047 from the day on which this notice was mailed, you are required to pay within 30 calendar days
1048 from the day on which this notice is mailed:
1049 (1) the check amount;
1050 (2) the $20 service charge; and
1051 (3) collection costs not to exceed $20.
1052 If you do not pay the check amount, the $20 service charge, and the collection costs
1053 within 30 calendar days from the day on which this notice is mailed, in accordance with
1054 Section 7-15-1 , Utah Code Annotated, an appropriate civil legal action may be filed against
1055 you for:
1056 (1) the check amount;
1057 (2) interest;
1058 (3) court costs;
1059 (4) attorneys' fees;
1060 (5) actual costs of collection as provided by law; and
1061 (6) damages in an amount equal to the greater of $100 or triple the check amount,
1062 except:
1063 (a) that damages recovered under this Subsection (6) may not exceed the check amount
1064 by more than $500; and
1065 (b) you are not liable for these damages for a check used to obtain a deferred deposit
1066 loan.
1067 In addition, the criminal code provides in Section 76-6-505 , Utah Code Annotated, that
1068 any person who issues or passes a check for the payment of money, for the purpose of
1069 obtaining from any person, firm, partnership, or corporation, any money, property, or other
1070 thing of value or paying for any services, wages, salary, labor, or rent, knowing it will not be
1071 paid by the drawee and payment is refused by the drawee, is guilty of issuing a bad check.
1072 The civil action referred to in this notice does not preclude the right to prosecute under
1073 the criminal code of the state.
1074 (Signed) ____________________________________________________
1075 Name of Holder: ____________________________________________________
1076 Address of Holder: ____________________________________________________
1077 Telephone Number: ___________________________________________________"
1078 (3) Notwithstanding the other provisions of this section, a holder exempt under
1079 Subsection 7-15-1 (9) is exempt from this section.
1080 Section 25. Section 8-4-2 is amended to read:
1081 8-4-2. Endowment care cemetery trust funds -- Deposits in endowment fund --
1082 Reports -- Penalties for failure to file -- Investment of trust fund monies -- Attestation.
1083 (1) An endowment care cemetery shall establish an endowment care trust fund
1084 pursuant to Title 75, Chapter 7, [
1085 (a) Any newly established endowment care cemetery or existing cemetery converting
1086 to an endowment care cemetery shall deposit a minimum of $25,000 in the endowment care
1087 trust fund.
1088 (b) Each endowment care cemetery shall deposit in the endowment care trust fund for
1089 each plot space sold or disposed of a minimum of:
1090 (i) $1.50 a square foot for each grave;
1091 (ii) $15 for each niche; and
1092 (iii) $60 for each crypt.
1093 (2) (a) An endowment care cemetery shall collect endowment care funds only pursuant
1094 to a written contract of sale signed by the endowment care cemetery and the purchaser.
1095 (b) The contract of sale shall specify the terms of the endowment care trust consistent
1096 with this section and the terms of payment.
1097 (c) If requested by the purchaser, a copy of the endowment care trust shall be provided
1098 to the purchaser.
1099 (3) (a) Each endowment care cemetery shall prepare an annual written report for the
1100 benefit of its trustor lot holders.
1101 (b) The report shall contain:
1102 (i) information determined to be reasonable and necessary to show compliance with the
1103 provisions of this chapter;
1104 (ii) the number and square feet of grave space;
1105 (iii) the number of crypts and niches sold or disposed of under endowment care during
1106 a specific period; and
1107 (iv) the dollar amount of sales, amounts paid, amounts receivable, and amounts
1108 deposited in endowment care funds for crypts, niches, and grave space during a specific period,
1109 set forth on the accrual basis as determined by the cemetery authority.
1110 (c) An officer of the endowment care cemetery authority shall verify the report.
1111 (d) The report shall be on file in the principal office of the endowment care cemetery
1112 and shall be made available upon request.
1113 (e) The report shall be completed by the 15th day of the third month following the end
1114 of the endowment care cemetery's fiscal year.
1115 (4) An officer, director, partner, proprietor, or other person having control of the
1116 records of an endowment care cemetery shall provide the reports and records necessary to
1117 comply with the provisions of this chapter.
1118 (5) A person is guilty of a class A misdemeanor who willfully and intentionally fails to:
1119 (a) deposit funds collected as endowment care funds into the endowment care trust
1120 within 30 days of receipt of the funds; or
1121 (b) prepare the report required by Subsection (3).
1122 (6) Endowment care funds may be invested separately or together. The investment
1123 income shall be divided between the funds in the proportion that each contributed to the
1124 invested amount.
1125 (7) Endowment care funds shall be invested in accordance with Section 31A-18-105
1126 and Title 75, Chapter 7, [
1127 (8) (a) An endowment care cemetery shall place endowment care funds with an
1128 independent trustee appointed by the endowment care cemetery.
1129 (b) A trustee may be independent even if it has common ownership with the cemetery.
1130 (c) The independent trustee shall be a depository institution, as defined by Section
1131 7-1-103 , or an insurer, as defined in Section 31A-1-301 .
1132 (9) (a) The trustee shall submit to the endowment care cemetery an annual independent
1133 attestation of the endowment care trust funds.
1134 (b) The attestation shall state:
1135 (i) the total amount of the general and special endowment care funds invested by law;
1136 (ii) the amount of cash on hand not invested;
1137 (iii) the location, description, and character of the investments in which the special
1138 endowment care funds are invested;
1139 (iv) the value of any securities held in the endowment care fund; and
1140 (v) the actual financial condition of the funds.
1141 (10) (a) A trustee may not receive compensation for services and expenses, including
1142 audits, in excess of 5% of the income derived from an endowment care fund in any year.
1143 (b) If there are insufficient funds from the income derived from the endowment care
1144 trust fund to pay for the attestation of the endowment care funds, the endowment care cemetery
1145 shall pay amounts due from funds other than the endowment care trust fund or income derived
1146 from that fund.
1147 (11) The income from an endowment care fund shall be used for the care, maintenance,
1148 and embellishment of the cemetery as determined by the endowment care cemetery, and to pay
1149 for administering the fund.
1150 Section 26. Section 9-3-410 is amended to read:
1151 9-3-410. Relation to certain acts.
1152 (1) The authority is exempt from:
1153 (a) Title 51, Chapter 5, Funds Consolidation Act;
1154 (b) Title 63A, Chapter 1, [
1155 (c) Title 63G, Chapter 6, Utah Procurement Code;
1156 (d) Title 63J, Chapter 1, Budgetary Procedures Act; and
1157 (e) Title 67, Chapter 19, Utah State Personnel Management Act.
1158 (2) The authority shall be subject to audit by:
1159 (a) the state auditor pursuant to Title 67, Chapter 3, Auditor; and
1160 (b) the legislative auditor general pursuant to Section 36-12-15 .
1161 (3) The authority shall annually report to the Retirement and Independent Entities
1162 Committee created under Section 63E-1-201 concerning the authority's implementation of this
1163 part.
1164 Section 27. Section 9-4-202 is amended to read:
1165 9-4-202. Powers and duties of division.
1166 (1) The division shall:
1167 (a) assist local governments and citizens in the planning, development, and
1168 maintenance of necessary public infrastructure and services;
1169 (b) cooperate with, and provide technical assistance to, counties, cities, towns, regional
1170 planning commissions, area-wide clearinghouses, zoning commissions, parks or recreation
1171 boards, community development groups, community action agencies, and other agencies
1172 created for the purpose of aiding and encouraging an orderly, productive, and coordinated
1173 development of the state and its political subdivisions;
1174 (c) assist the governor in coordinating the activities of state agencies which have an
1175 impact on the solution of community development problems and the implementation of
1176 community plans;
1177 (d) serve as a clearinghouse for information, data, and other materials which may be
1178 helpful to local governments in discharging their responsibilities and provide information on
1179 available federal and state financial and technical assistance;
1180 (e) carry out continuing studies and analyses of the problems faced by communities
1181 within the state and develop such recommendations for administrative or legislative action as
1182 appear necessary;
1183 (f) assist in funding affordable housing and addressing problems of homelessness;
1184 (g) support economic development activities through grants, loans, and direct programs
1185 financial assistance;
1186 (h) certify project funding at the local level in conformance with federal, state, and
1187 other requirements;
1188 (i) utilize the capabilities and facilities of public and private universities and colleges
1189 within the state in carrying out its functions;
1190 (j) assist and support local governments, community action agencies, and citizens in
1191 the planning, development, and maintenance of home weatherization, energy efficiency, and
1192 antipoverty activities; and
1193 (k) assist and support volunteer efforts in the state.
1194 (2) The division may:
1195 (a) by following the procedures and requirements of Title 63J, Chapter 5, Federal
1196 Funds Procedures Act, seek federal grants, loans, or participation in federal programs;
1197 (b) if any federal program requires the expenditure of state funds as a condition to
1198 participation by the state in any fund, property, or service, with the governor's approval, expend
1199 whatever funds are necessary out of the money provided by the Legislature for the use of the
1200 department;
1201 (c) in accordance with Part 13, Domestic Violence Shelters, assist in developing,
1202 constructing, and improving shelters for victims of domestic violence, as described in Section
1203 77-36-1 , through loans and grants to nonprofit and governmental entities; and
1204 (d) assist, when requested by a county or municipality, in the development of
1205 accessible housing.
1206 (3) (a) The division is recognized as an issuing authority as defined in Subsection
1207 9-4-502 (7), entitled to issue bonds from the Small Issue Bond Account created in Subsection
1208 9-4-506 (1)(c) as a part of the state's private activity bond volume cap authorized by the Internal
1209 Revenue Code of 1986 and computed under Section 146 of the code.
1210 (b) To promote and encourage the issuance of bonds from the Small Issue Bond
1211 Account for manufacturing projects, the division may:
1212 (i) develop campaigns and materials that inform qualified small manufacturing
1213 businesses about the existence of the program and the application process;
1214 (ii) assist small businesses in applying for and qualifying for these bonds; or
1215 (iii) develop strategies to lower the cost to small businesses of applying for and
1216 qualifying for these bonds, including making arrangements with financial advisors,
1217 underwriters, bond counsel, and other professionals involved in the issuance process to provide
1218 their services at a reduced rate when the division can provide them with a high volume of
1219 applicants or issues.
1220 Section 28. Section 9-6-305 is amended to read:
1221 9-6-305. Art collection committee.
1222 (1) The division shall appoint a committee of artists or judges of art to take charge of
1223 all works of art acquired under this chapter. This collection shall be known as the Utah State
1224 Alice Art Collection.
1225 (2) (a) Except as required by Subsection (2)(b), as terms of current board members
1226 expire, the division shall appoint each new member or reappointed member to a four-year term.
1227 (b) Notwithstanding the requirements of Subsection (2)(a), the division shall, at the
1228 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
1229 board members are staggered so that approximately half of the board is appointed every two
1230 years.
1231 (3) When a vacancy occurs in the membership for any reason, the replacement shall be
1232 appointed for the unexpired term.
1233 (4) (a) Members shall receive no compensation or benefits for their services, but may
1234 receive per diem and expenses incurred in the performance of the member's official duties at
1235 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
1236 (b) Members may decline to receive per diem and expenses for their service.
1237 Section 29. Section 9-6-505 is amended to read:
1238 9-6-505. Eligibility requirements of qualifying arts organizations -- Allocation
1239 limitations -- Matching requirements.
1240 (1) Any qualifying organization may apply to receive moneys from the state fund to be
1241 deposited in an endowment fund it has created under Subsection 9-6-503 (1):
1242 (a) if it has received a grant from the board during one of the three years immediately
1243 before making application for state fund moneys under this Subsection (1); or
1244 (b) upon approval by the board if it has not received a grant from the board within the
1245 past three years.
1246 (2) (a) The maximum amount that may be allocated to each qualifying organization
1247 from the state fund shall be determined by the board by calculating the average cash income of
1248 the qualifying organization during the past three fiscal years as contained in the qualifying
1249 organization's final reports on file with the board. The board shall notify each qualifying
1250 organization of the maximum amount of moneys from the state fund for which it qualifies.
1251 (b) The minimum amount that may be allocated to each qualifying organization from
1252 the state fund is $2,500.
1253 (c) If the maximum amount for which the organization qualifies is less than $2,500, the
1254 organization may still apply for $2,500.
1255 (3) After the board determines that a qualifying organization is eligible to receive
1256 moneys from the state fund and before any money is allocated to the qualifying organization
1257 from the state fund, the qualifying organization shall match the amount qualified for by moneys
1258 raised and designated exclusively for that purpose. State moneys, in-kind contributions, and
1259 preexisting endowment gifts may not be used to match moneys from the state fund.
1260 (4) Endowment match moneys shall be based on a sliding scale as follows:
1261 (a) any amount requested not exceeding $100,000 shall be matched one-to-one;
1262 (b) any additional amount requested that makes the aggregate amount requested exceed
1263 $100,000 but not exceed $500,000 shall be matched two-to-one; and
1264 (c) any additional amount requested that makes the aggregate amount requested exceed
1265 $500,000 shall be matched three-to-one.
1266 (5) (a) Qualifying organizations shall raise the matching amount within three years
1267 after applying for moneys from the state fund by a date determined by the board.
1268 (b) Moneys from the state fund shall be released to the qualifying organization only
1269 upon verification by the board that the matching money has been received on or before the date
1270 determined under Subsection (5)(a). Verification of matching funds shall be made by a certified
1271 public accountant.
1272 (c) Moneys from the state fund shall be released to qualifying organizations with
1273 professional endowment management in increments not less than $20,000 as audited
1274 confirmation of matching funds is received by the board.
1275 (d) Moneys from the state fund shall be granted to each qualifying organization on the
1276 basis of the matching funds it has raised by the date determined under Subsection (5)(a).
1277 Section 30. Section 9-7-204 is amended to read:
1278 9-7-204. State Library Board -- Members -- Meetings -- Expenses.
1279 (1) There is created within the department the State Library Board.
1280 (2) (a) The board shall consist of nine members appointed by the governor.
1281 (b) One member shall be appointed on recommendation from each of the following
1282 agencies:
1283 (i) the State Office of Education;
1284 (ii) the Board of Control of the State Law Library;
1285 (iii) the Office of Legislative Research and General Counsel; and
1286 (iv) the Utah System of Higher Education.
1287 (c) Of the five remaining members at least two shall be appointed from rural areas.
1288 (3) (a) Except as required by Subsection (3)(b), as terms of current board members
1289 expire, the governor shall appoint each new member or reappointed member to a four-year
1290 term.
1291 (b) [
1292 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
1293 board members are staggered so that approximately half of the board is appointed every two
1294 years.
1295 (4) The members may not serve more than two full consecutive terms.
1296 (5) When a vacancy occurs in the membership for any reason, the replacement shall be
1297 appointed for the unexpired term in the same manner as originally appointed.
1298 (6) Five members of the board constitute a quorum for conducting board business.
1299 (7) The governor shall select one of the board members as chair who shall serve for a
1300 period of two years.
1301 (8) The director of the State Library Division shall be executive officer of the board.
1302 (9) (a) (i) Members who are not government employees shall receive no compensation
1303 or benefits for their services, but may receive per diem and expenses incurred in the
1304 performance of the member's official duties at the rates established by the Division of Finance
1305 under Sections 63A-3-106 and 63A-3-107 .
1306 (ii) Members may decline to receive per diem and expenses for their service.
1307 (b) (i) State government officer and employee members who do not receive salary, per
1308 diem, or expenses from their agency for their service may receive per diem and expenses
1309 incurred in the performance of their official duties from the board at the rates established by the
1310 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
1311 (ii) State government officer and employee members may decline to receive per diem
1312 and expenses for their service.
1313 (c) (i) Higher education members who do not receive salary, per diem, or expenses
1314 from the entity that they represent for their service may receive per diem and expenses incurred
1315 in the performance of their official duties from the committee at the rates established by the
1316 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
1317 (ii) Higher education members may decline to receive per diem and expenses for their
1318 service.
1319 Section 31. Section 9-8-705 is amended to read:
1320 9-8-705. Eligibility requirements of qualifying history organizations -- Allocation
1321 limitations -- Matching requirements.
1322 (1) Any qualifying organization may apply to receive monies from the state fund to be
1323 deposited in an endowment fund it has created under Section 9-8-703 :
1324 (a) if it has received a grant from the division during one of the three years immediately
1325 before making application for state fund monies under this Subsection (1); or
1326 (b) if it has not received a grant from the division within the past three years, it may
1327 receive a grant upon approval by the division according to policy of the board.
1328 (2) (a) The maximum amount that may be allocated to each qualifying organization
1329 from the state fund shall be determined by the division in a format to be developed in
1330 consultation with the board.
1331 (b) The minimum amount that may be allocated to each qualifying organization from
1332 the state fund is $2,500.
1333 (3) After the division determines that a qualifying organization is eligible to receive
1334 monies from the state fund and before any money is allocated to the qualifying organization
1335 from the state fund, the qualifying organization shall match the amount qualified for by monies
1336 raised and designated exclusively for that purpose. State monies and in-kind contributions may
1337 not be used to match monies from the state fund.
1338 (4) Endowment match monies shall be based on a sliding scale as follows:
1339 (a) amounts requested up to $20,000 shall be matched one-to-one;
1340 (b) any additional amount requested that makes the aggregate amount requested exceed
1341 $20,000 but not exceed $50,000 shall be matched two-to-one; and
1342 (c) any additional amount requested that makes the aggregate amount requested exceed
1343 $50,000 shall be matched three-to-one.
1344 (5) (a) Qualifying organizations shall raise the matching amount by a date determined
1345 by the board.
1346 (b) Monies from the state fund shall be released to the qualifying organization only
1347 upon verification by the division that the matching money has been received on or before the
1348 date determined under Subsection (5)(a). Verification of matching funds shall be made by a
1349 certified public accountant.
1350 (c) Monies from the state fund shall be released to qualifying organizations with
1351 professional endowment management in increments not less than $2,500 as audited
1352 confirmation of matching funds is received by the board.
1353 (d) Monies from the state fund shall be granted to each qualifying organization on the
1354 basis of the matching funds it has raised by the date determined under Subsection (5)(a).
1355 Section 32. Section 11-32-3.5 is amended to read:
1356 11-32-3.5. Entry into an established interlocal finance authority -- Withdrawal
1357 from an interlocal finance authority -- Effect of outstanding debt -- Effect on
1358 organization.
1359 (1) The governing body of any public body, which is not at that time a member of a
1360 financing authority established in the county in which the public body is located, may, by
1361 resolution, elect to join the authority.
1362 (2) The resolution shall state the name of the public body and that the public body
1363 thereby petitions for membership in the authority. A certified copy of the resolution shall be
1364 delivered to the authority.
1365 (3) The public body shall become a participant member of the authority, upon receipt
1366 by the authority of the resolution, but only with respect to any financing initiated after the
1367 public body has become a member of the authority.
1368 (4) A participant member may elect to withdraw from an authority by resolution
1369 adopted by the governing body of the participant member following:
1370 (a) the payment of all outstanding bonds for which a participant member's delinquent
1371 tax receivables have been assigned;
1372 (b) the distribution of remaining amounts as provided in Section 11-32-15 ; and
1373 (c) satisfactory completion of any independent accounting audits requested by the
1374 authority or the county.
1375 (5) The resolution of the governing body of the public body which is withdrawing its
1376 membership shall state the name of the public body it represents and that the public body
1377 thereby petitions for withdrawal from the authority. A certified copy of the resolution shall be
1378 delivered to the authority. The membership of the public body in the authority shall terminate
1379 upon receipt of the resolution by the authority.
1380 (6) A public body which has withdrawn from membership in an authority may elect to
1381 join such authority to participate in future financings by the authority.
1382 (7) (a) By resolution of its governing body, a participant member may elect not to
1383 participate in future financings of the authority. Such election shall be effective upon delivery
1384 of a certified copy of the resolution to the authority.
1385 (b) In addition to the method outlined in Subsection (7)(a), a participant member may
1386 be considered to have elected not to participate in future financings in any reasonable manner
1387 selected by the authority.
1388 (8) For purposes of determining the presence of a quorum of the board of trustees or
1389 for other purposes, the board of trustees of an authority may treat participant members which
1390 have elected or are considered to have elected not to participate in a financing as not being
1391 participant members.
1392 (9) The composition organization of the authority shall change upon the entrance,
1393 election to participate, election not to participate, or withdrawal of a participant member.
1394 Section 33. Section 11-32-15 is amended to read:
1395 11-32-15. Special fund -- Apportionment of excess amounts.
1396 (1) The provisions of Title 59, Revenue and Taxation, otherwise notwithstanding,
1397 delinquent taxes paid to the county on behalf of the participant members shall be paid into the
1398 special fund created with respect to the bonds issued by any authority.
1399 (2) Following the payment of all bonds issued with respect to any delinquent tax
1400 receivables and all other amounts due and owing under any assignment agreement, amounts
1401 remaining on deposit with the authority or in the special fund created with respect to the
1402 issuance of the bonds shall be apportioned and distributed as follows:
1403 (a) Any amounts which represent the amount by which the delinquent taxes recovered
1404 exceed the amount originally paid by the authority at the time of transfer of the delinquent tax
1405 receivables to the authority shall be distributed to the respective participant members, including
1406 the county, in the proportion of their respective taxes.
1407 (b) Any amounts remaining following the distribution directed in Subsection (2)(a)
1408 shall be paid to the county.
1409 Section 34. Section 13-11-21 is amended to read:
1410 13-11-21. Settlement of class action -- Complaint in class action delivered to
1411 enforcing authority.
1412 (1) (a) A defendant in a class action may file a written offer of settlement. If it is not
1413 accepted within a reasonable time by a plaintiff class representative, the defendant may file an
1414 affidavit reciting the rejection. The court may determine that the offer has enough merit to
1415 present to the members of the class. If it so determines, it shall order a hearing to determine
1416 whether the offer should be approved. It shall give the best notice of the hearing that is
1417 practicable under the circumstances, including notice to each member who can be identified
1418 through reasonable effort. The notice shall specify the terms of the offer and a reasonable
1419 period within which members of the class who request it are entitled to be included in the class.
1420 The statute of limitations for those who are excluded pursuant to this Subsection (1) is tolled
1421 for the period the class action has been pending, plus an additional year.
1422 (b) If a member who has previously lost an opportunity to be excluded from the class is
1423 excluded at his request in response to notice of the offer of settlement during the period
1424 specified under Subsection (1)(a), he may not thereafter participate in a class action for
1425 damages respecting the same consumer transaction, unless the court later disapproves the offer
1426 of settlement or approves a settlement materially different from that proposed in the original
1427 offer of settlement. After the expiration of the period of limitations, a member of the class is
1428 not entitled to be excluded from it.
1429 (c) If the court later approves the offer of settlement, including changes, if any,
1430 required by the court in the interest of a just settlement of the action, it shall enter judgment,
1431 which is binding on all persons who are then members of the class. If the court disapproves the
1432 offer or approves a settlement materially different from that proposed in the original offer,
1433 notice shall be given to a person who was excluded from the action at his request in response to
1434 notice of the offer under Subsection (1)(a), and he is entitled to rejoin the class and, in the case
1435 of the approval, participate in the settlement.
1436 (2) On the commencement of a class action under Section 13-11-19 , the class
1437 representative shall mail by certified mail with return receipt requested or personally serve a
1438 copy of the complaint on the enforcing authority. Within 30 days after the receipt of a copy of
1439 the complaint, but not thereafter, the enforcing authority may intervene in the class action.
1440 Section 35. Section 13-28-2 is amended to read:
1441 13-28-2. Definitions.
1442 For the purpose of this part:
1443 (1) "Division" means the Division of Consumer Protection in the Department of
1444 Commerce.
1445 (2) "Prize" means a gift, award, or other item or service of value.
1446 (3) (a) "Prize notice" means a notice given to an individual in this state that satisfies all
1447 of the following:
1448 (i) is or contains a representation that the individual has been selected or may be
1449 eligible to receive a prize; and
1450 (ii) conditions receipt of a prize on a payment or donation from the individual or
1451 requires or invites the individual to make a contact to learn how to receive the prize or to obtain
1452 other information related to the notice.
1453 (b) "Prize notice" does not include:
1454 (i) a notice given at the request of the individual; or
1455 (ii) a notice informing the individual that he or she has been awarded a prize as a result
1456 of his actual prior entry in a game, drawing, sweepstakes, or other contest if the individual is
1457 awarded the prize stated in the notice.
1458 (4) "Solicitor" means a person who represents to an individual that the individual has
1459 been selected or may be eligible to receive a prize.
1460 (5) "Sponsor" means a person on whose behalf a solicitor gives a prize notice.
1461 (6) "Verifiable retail value" of a prize means:
1462 (a) a price at which the solicitor or sponsor can demonstrate that a substantial number
1463 of the prizes have been sold by a person other than the solicitor or sponsor in the trade area in
1464 which the prize notice is given; or
1465 (b) if the solicitor or sponsor is unable to satisfy Subsection (6)(a), no more than 1.5
1466 times the amount the solicitor or sponsor paid for the prize.
1467 Section 36. Section 16-10a-705 is amended to read:
1468 16-10a-705. Notice of meeting.
1469 (1) A corporation shall give notice to shareholders of the date, time, and place of each
1470 annual and special shareholders' meeting no fewer than 10 nor more than 60 days before the
1471 meeting date. Unless this chapter or the articles of incorporation require otherwise, the
1472 corporation is required to give notice only to shareholders entitled to vote at the meeting.
1473 (2) Unless this chapter or the articles of incorporation require otherwise, notice of an
1474 annual meeting need not include a description of the purpose or purposes for which the meeting
1475 is called.
1476 (3) Notice of a special meeting must include a description of the purpose or purposes
1477 for which the meeting is called.
1478 (4) (a) Subject to Subsection (4)(b), unless the bylaws require otherwise, if an annual
1479 or special shareholders' meeting is adjourned to a different date, time, or place, notice need not
1480 be given of the new date, time, or place if the new date, time, or place is announced at the
1481 meeting before adjournment.
1482 (b) If the adjournment is for more than 30 days, or if after the adjournment a new
1483 record date for the adjourned meeting is or must be fixed under Section 16-10a-707 , notice of
1484 the adjourned meeting must be given pursuant to the requirements of this section to
1485 shareholders of record who are entitled to vote at the meeting.
1486 (5) (a) Notwithstanding a requirement that notice be given under any provision of this
1487 chapter, the articles of incorporation, or bylaws of any corporation, notice shall not be required
1488 to be given to any shareholder to whom:
1489 (i) a notice of two consecutive annual meetings, and all notices of meetings or of the
1490 taking of action by written consent without a meeting during the period between the two
1491 consecutive annual meetings, have been mailed, addressed to the shareholder at the
1492 shareholder's address as shown on the records of the corporation, and have been returned
1493 undeliverable; or
1494 (ii) at least two payments, if sent by first class mail, of dividends or interest on
1495 securities during a 12 month period, have been mailed, addressed to the shareholder at the
1496 shareholder's address as shown on the records of the corporation, and have been returned
1497 undeliverable.
1498 (b) Any action taken or meeting held without notice to a shareholder to whom notice is
1499 excused under Subsection (5) has the same force and effect as if notice had been duly given. If
1500 a shareholder to whom notice is excused under Subsection (5) delivers to the corporation a
1501 written notice setting forth the shareholder's current address, or if another address for the
1502 shareholder is otherwise made known to the corporation, the requirement that notice be given
1503 to the shareholder is reinstated. In the event that the action taken by the corporation requires the
1504 filing of a certificate under any provision of this chapter, the certificate need not state that
1505 notice was not given to shareholders to whom notice was not required pursuant to this
1506 Subsection (5).
1507 Section 37. Section 16-10a-906 is amended to read:
1508 16-10a-906. Determination and authorization of indemnification of directors.
1509 (1) A corporation may not indemnify a director under Section 16-10a-902 unless
1510 authorized and a determination has been made in the specific case that indemnification of the
1511 director is permissible in the circumstances because the director has met the applicable
1512 standard of conduct set forth in Section 16-10a-902 . A corporation may not advance expenses
1513 to a director under Section 16-10a-904 unless authorized in the specific case after the written
1514 affirmation and undertaking required by Subsections 16-10a-904 (1)(a) and (b) are received and
1515 the determination required by Subsection 16-10a-904 (1)(c) has been made.
1516 (2) The determinations required by Subsection (1) shall be made:
1517 (a) by the board of directors by a majority vote of those present at a meeting at which a
1518 quorum is present, and only those directors not parties to the proceeding shall be counted in
1519 satisfying the quorum; or
1520 (b) if a quorum cannot be obtained as contemplated in Subsection (2)(a), by a majority
1521 vote of a committee of the board of directors designated by the board of directors, which
1522 committee shall consist of two or more directors not parties to the proceeding, except that
1523 directors who are parties to the proceeding may participate in the designation of directors for
1524 the committee;
1525 (c) by special legal counsel:
1526 (i) selected by the board of directors or its committee in the manner prescribed in
1527 Subsection (2)(a) or (b); or
1528 (ii) if a quorum of the board of directors cannot be obtained under Subsection (2)(a)
1529 and a committee cannot be designated under Subsection (2)(b), selected by a majority vote of
1530 the full board of directors, in which selection directors who are parties to the proceeding may
1531 participate; or
1532 (d) by the shareholders, by a majority of the votes entitled to be cast by holders of
1533 qualified shares present in person or by proxy at a meeting.
1534 (3) A majority of the votes entitled to be cast by the holders of all qualified shares
1535 constitutes a quorum for purposes of action that complies with this section. Shareholders'
1536 action that otherwise complies with this section is not affected by the presence of holders, or
1537 the voting, of shares that are not qualified shares.
1538 (4) Unless authorization is required by the bylaws, authorization of indemnification
1539 and advance of expenses shall be made in the same manner as the determination that
1540 indemnification or advance of expenses is permissible. However, if the determination that
1541 indemnification or advance of expenses is permissible is made by special legal counsel,
1542 authorization of indemnification and advance of expenses shall be made by a body entitled
1543 under Subsection (2)(c) to select legal counsel.
1544 Section 38. Section 16-10a-1325 is amended to read:
1545 16-10a-1325. Payment.
1546 (1) Except as provided in Section 16-10a-1327 , upon the later of the effective date of
1547 the corporate action creating dissenters' rights under Section 16-10a-1302 , and receipt by the
1548 corporation of each payment demand pursuant to Section 16-10a-1323 , the corporation shall
1549 pay the amount the corporation estimates to be the fair value of the dissenter's shares, plus
1550 interest to each dissenter who has complied with Section 16-10a-1323 , and who meets the
1551 requirements of Section 16-10a-1321 , and who has not yet received payment.
1552 (2) Each payment made pursuant to Subsection (1) must be accompanied by:
1553 (a) (i) (A) the corporation's balance sheet as of the end of its most recent fiscal year, or
1554 if not available, a fiscal year ending not more than 16 months before the date of payment;
1555 (B) an income statement for that year;
1556 (C) a statement of changes in shareholders' equity for that year and a statement of cash
1557 flow for that year, if the corporation customarily provides such statements to shareholders; and
1558 (D) the latest available interim financial statements, if any;
1559 (ii) the balance sheet and statements referred to in Subsection (2)(a)(i) must be audited
1560 if the corporation customarily provides audited financial statements to shareholders;
1561 (b) a statement of the corporation's estimate of the fair value of the shares and the
1562 amount of interest payable with respect to the shares;
1563 (c) a statement of the dissenter's right to demand payment under Section 16-10a-1328 ;
1564 and
1565 (d) a copy of this part.
1566 Section 39. Section 17-36-5 is amended to read:
1567 17-36-5. Creation of Citizens and County Officials Advisory Committee.
1568 (1) For the purpose of this act there is created a Citizens and County Officials Advisory
1569 Committee appointed by the state auditor composed of the following persons:
1570 (a) five county auditors elected to that specific and exclusive position;
1571 (b) five county treasurers elected to that specific and exclusive position;
1572 (c) two citizens with expertise in the area of local government and the needs and
1573 problems of such government;
1574 (d) four additional elected county officers, one of whom shall be from the five largest
1575 counties in the state and one of whom shall be from the five smallest counties in the state; and
1576 (e) such other members as the auditor considers appropriate.
1577 (2) (a) Except as required by Subsection (2)(b), the terms of committee members shall
1578 be four years each.
1579 (b) Notwithstanding the requirements of Subsection (2)(a), the state auditor shall, at the
1580 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
1581 committee members are staggered so that approximately half of the committee is appointed
1582 every two years.
1583 (3) When a vacancy occurs in the membership for any reason, the replacement shall be
1584 appointed for the unexpired term.
1585 (4) (a) (i) Members who are not government employees shall receive no compensation
1586 or benefits for their services, but may receive per diem and expenses incurred in the
1587 performance of the member's official duties at the rates established by the Division of Finance
1588 under Sections 63A-3-106 and 63A-3-107 .
1589 (ii) Members may decline to receive per diem and expenses for their service.
1590 (b) (i) State government officer and employee members who do not receive salary, per
1591 diem, or expenses from their agency for their service may receive per diem and expenses
1592 incurred in the performance of their official duties from the committee at the rates established
1593 by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
1594 (ii) State government officer and employee members may decline to receive per diem
1595 and expenses for their service.
1596 (c) (i) Local government members who do not receive salary, per diem, or expenses
1597 from the entity that they represent for their service may receive per diem and expenses incurred
1598 in the performance of their official duties at the rates established by the Division of Finance
1599 under Sections 63A-3-106 and 63A-3-107 .
1600 (ii) Local government members may decline to receive per diem and expenses for their
1601 service.
1602 (5) The advisory committee shall assist, advise, and make recommendations to the
1603 state auditor in the preparation of a uniform system of county budgeting, accounting, and
1604 reporting.
1605 Section 40. Section 19-2-109.2 is amended to read:
1606 19-2-109.2. Small business assistance program.
1607 (1) The board shall establish a small business stationary source technical and
1608 environmental compliance assistance program that conforms with Title V of the 1990 Clean
1609 Air Act to assist small businesses to comply with state and federal air pollution laws.
1610 (2) There is created the Compliance Advisory Panel to advise and monitor the program
1611 created in Subsection (1). The seven panel members are:
1612 (a) two members who are not owners or representatives of owners of small business
1613 stationary air pollution sources, selected by the governor to represent the general public;
1614 (b) four members who are owners or who represent owners of small business stationary
1615 sources selected by leadership of the Utah Legislature as follows:
1616 (i) one member selected by the majority leader of the Senate;
1617 (ii) one member selected by the minority leader of the Senate;
1618 (iii) one member selected by the majority leader of the House of Representatives; and
1619 (iv) one member selected by the minority leader of the House of Representatives; and
1620 (c) one member selected by the executive director to represent the Division of Air
1621 Quality, Department of Environmental Quality.
1622 (3) (a) Except as required by Subsection (3)(b), as terms of current panel members
1623 expire, the department shall appoint each new member or reappointed member to a four-year
1624 term.
1625 (b) Notwithstanding the requirements of Subsection (3)(a), the department shall, at the
1626 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
1627 panel members are staggered so that approximately half of the panel is appointed every two
1628 years.
1629 (4) Members may serve more than one term.
1630 (5) Members shall hold office until the expiration of their terms and until their
1631 successors are appointed, but not more than 90 days after the expiration of their terms.
1632 (6) When a vacancy occurs in the membership for any reason, the replacement shall be
1633 appointed for the unexpired term.
1634 (7) Every two years, the panel shall elect a chair from its members.
1635 (8) (a) The panel shall meet as necessary to carry out its duties. Meetings may be called
1636 by the chair, the executive secretary, or upon written request of three of the members of the
1637 panel.
1638 (b) Three days' notice shall be given to each member of the panel prior to a meeting.
1639 (9) Four members constitute a quorum at any meeting, and the action of the majority of
1640 members present is the action of the panel.
1641 (10) (a) (i) Members who are not government employees shall receive no
1642 compensation or benefits for their services, but may receive per diem and expenses incurred in
1643 the performance of the member's official duties at the rates established by the Division of
1644 Finance under Sections 63A-3-106 and 63A-3-107 .
1645 (ii) Members may decline to receive per diem and expenses for their service.
1646 (b) (i) State government officer and employee members who do not receive salary, per
1647 diem, or expenses from their agency for their service may receive per diem and expenses
1648 incurred in the performance of their official duties from the panel at the rates established by the
1649 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
1650 (ii) State government officer and employee members may decline to receive per diem
1651 and expenses for their service.
1652 (c) Legislators on the committee shall receive compensation and expenses as provided
1653 by law and legislative rule.
1654 Section 41. Section 19-2-113 is amended to read:
1655 19-2-113. Variances -- Judicial review.
1656 (1) (a) Any person who owns or is in control of any plant, building, structure,
1657 establishment, process, or equipment may apply to the board for a variance from its rules.
1658 (b) The board may grant the requested variance following an announced public
1659 meeting, if it finds, after considering the endangerment to human health and safety and other
1660 relevant factors, that compliance with the rules from which variance is sought would produce
1661 serious hardship without equal or greater benefits to the public.
1662 (2) A variance may not be granted under this section until the board has considered the
1663 relative interests of the applicant, other owners of property likely to be affected by the
1664 discharges, and the general public.
1665 (3) Any variance or renewal of a variance shall be granted within the requirements of
1666 Subsection (1) and for time periods and under conditions consistent with the reasons for it, and
1667 within the following limitations:
1668 (a) if the variance is granted on the grounds that there are no practicable means known
1669 or available for the adequate prevention, abatement, or control of the air pollution involved, it
1670 shall be only until the necessary means for prevention, abatement, or control become known
1671 and available, and subject to the taking of any substitute or alternate measures that the board
1672 may prescribe;
1673 (b) (i) if the variance is granted on the grounds that compliance with the requirements
1674 from which variance is sought will require that measures, because of their extent or cost, must
1675 be spread over a long period of time, the variance shall be granted for a reasonable time that, in
1676 the view of the board, is required for implementation of the necessary measures; and
1677 (ii) a variance granted on this ground shall contain a timetable for the implementation
1678 of remedial measures in an expeditious manner and shall be conditioned on adherence to the
1679 timetable; or
1680 (c) if the variance is granted on the ground that it is necessary to relieve or prevent
1681 hardship of a kind other than that provided for in Subsection (3)(a) or (b), it shall not be
1682 granted for more than one year.
1683 (4) (a) Any variance granted under this section may be renewed on terms and
1684 conditions and for periods that would be appropriate for initially granting a variance.
1685 (b) If a complaint is made to the board because of the variance, a renewal may not be
1686 granted unless, following an announced public meeting, the board finds that renewal is
1687 justified.
1688 (c) To receive a renewal, an applicant shall submit a request for agency action to the
1689 board requesting a renewal.
1690 (d) Immediately upon receipt of an application for renewal, the board shall give public
1691 notice of the application as required by its rules.
1692 (5) (a) A variance or renewal is not a right of the applicant or holder but may be
1693 granted at the board's discretion.
1694 (b) A person aggrieved by the board's decision may obtain judicial review.
1695 (c) Venue for judicial review of informal adjudicative proceedings is in the district
1696 court in which the air contaminant source is situated.
1697 (6) (a) The board may review any variance during the term for which it was granted.
1698 (b) The review procedure is the same as that for an original application.
1699 (c) The variance may be revoked upon a finding that:
1700 (i) the nature or amount of emission has changed or increased; or
1701 (ii) if facts existing at the date of the review had existed at the time of the original
1702 application, the variance would not have been granted.
1703 (7) Nothing in this section and no variance or renewal granted pursuant to it shall be
1704 construed to prevent or limit the application of the emergency provisions and procedures of
1705 Section 19-2-112 to any person or property.
1706 Section 42. Section 19-5-115 is amended to read:
1707 19-5-115. Violations -- Penalties -- Civil actions by board -- Ordinances and rules
1708 of political subdivisions.
1709 (1) The terms "knowingly," "willfully," and "criminal negligence" shall mean as
1710 defined in Section 76-2-103 .
1711 (2) Any person who violates this chapter, or any permit, rule, or order adopted under it,
1712 upon a showing that the violation occurred, is subject in a civil proceeding to a civil penalty not
1713 to exceed $10,000 per day of violation.
1714 (3) (a) A person is guilty of a class A misdemeanor and is subject to imprisonment
1715 under Section 76-3-204 and a fine not exceeding $25,000 per day who with criminal
1716 negligence:
1717 (i) discharges pollutants in violation of Subsection 19-5-107 (1) or in violation of any
1718 condition or limitation included in a permit issued under Subsection 19-5-107 (3);
1719 (ii) violates Section 19-5-113 ;
1720 (iii) violates a pretreatment standard or toxic effluent standard for publicly owned
1721 treatment works; or
1722 (iv) manages sewage sludge in violation of this chapter or rules adopted under it.
1723 (b) A person is guilty of a third degree felony and is subject to imprisonment under
1724 Section 76-3-203 and a fine not to exceed $50,000 per day of violation who knowingly:
1725 (i) discharges pollutants in violation of Subsection 19-5-107 (1) or in violation of any
1726 condition or limitation included in a permit issued under Subsection 19-5-107 (3);
1727 (ii) violates Section 19-5-113 ;
1728 (iii) violates a pretreatment standard or toxic effluent standard for publicly-owned
1729 treatment works; or
1730 (iv) manages sewage sludge in violation of this chapter or rules adopted under it.
1731 (4) A person is guilty of a third degree felony and subject to imprisonment under
1732 Section 76-3-203 and shall be punished by a fine not exceeding $10,000 per day of violation if
1733 that person knowingly:
1734 (a) makes a false material statement, representation, or certification in any application,
1735 record, report, plan, or other document filed or required to be maintained under this chapter, or
1736 by any permit, rule, or order issued under it; or
1737 (b) falsifies, tampers with, or knowingly renders inaccurate any monitoring device or
1738 method required to be maintained under this chapter.
1739 (5) (a) As used in this section:
1740 (i) "Organization" means a legal entity, other than a government, established or
1741 organized for any purpose, and includes a corporation, company, association, firm, partnership,
1742 joint stock company, foundation, institution, trust, society, union, or any other association of
1743 persons.
1744 (ii) "Serious bodily injury" means bodily injury which involves a substantial risk of
1745 death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or
1746 protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
1747 (b) A person is guilty of a second degree felony and, upon conviction, is subject to
1748 imprisonment under Section 76-3-203 and a fine of not more than $250,000 if that person:
1749 (i) knowingly violates this chapter, or any permit, rule, or order adopted under it; and
1750 (ii) knows at that time that he is placing another person in imminent danger of death or
1751 serious bodily injury.
1752 (c) If a person is an organization, it shall, upon conviction of violating Subsection
1753 (5)(a), be subject to a fine of not more than $1,000,000.
1754 (d) (i) A defendant who is an individual is considered to have acted knowingly if:
1755 (A) the defendant's conduct placed another person in imminent danger of death or
1756 serious bodily injury; and
1757 (B) the defendant was aware of or believed that there was an imminent danger of death
1758 or serious bodily injury to another person.
1759 (ii) Knowledge possessed by a person other than the defendant may not be attributed to
1760 the defendant.
1761 (iii) Circumstantial evidence may be used to prove that the defendant possessed actual
1762 knowledge, including evidence that the defendant took affirmative steps to be shielded from
1763 receiving relevant information.
1764 (e) (i) It is an affirmative defense to prosecution under Subsection (5) that the conduct
1765 charged was consented to by the person endangered and that the danger and conduct charged
1766 were reasonably foreseeable hazards of:
1767 (A) an occupation, a business, or a profession; or
1768 (B) medical treatment or medical or scientific experimentation conducted by
1769 professionally approved methods and the other person was aware of the risks involved prior to
1770 giving consent.
1771 (ii) The defendant has the burden of proof to establish any affirmative defense under
1772 this Subsection (5)(e) and must prove that defense by a preponderance of the evidence.
1773 (6) For purposes of Subsections 19-5-115 (3) through (5), a single operational upset
1774 which leads to simultaneous violations of more than one pollutant parameter shall be treated as
1775 a single violation.
1776 (7) (a) The board may begin a civil action for appropriate relief, including a permanent
1777 or temporary injunction, for any violation or threatened violation for which it is authorized to
1778 issue a compliance order under Section 19-5-111 .
1779 (b) Actions shall be brought in the district court where the violation or threatened
1780 violation occurs.
1781 (8) (a) The attorney general is the legal advisor for the board and its executive secretary
1782 and shall defend them in all actions or proceedings brought against them.
1783 (b) The county attorney or district attorney as appropriate under Sections 17-18-1 ,
1784 17-18-1.5 , and 17-18-1.7 in the county in which a cause of action arises, shall bring any action,
1785 civil or criminal, requested by the board, to abate a condition that exists in violation of, or to
1786 prosecute for the violation of, or to enforce, the laws or the standards, orders, and rules of the
1787 board or the executive secretary issued under this chapter.
1788 (c) The board may itself initiate any action under this section and be represented by the
1789 attorney general.
1790 (9) If any person fails to comply with a cease and desist order that is not subject to a
1791 stay pending administrative or judicial review, the board may, through its executive secretary,
1792 initiate an action for and be entitled to injunctive relief to prevent any further or continued
1793 violation of the order.
1794 (10) Any political subdivision of the state may enact and enforce ordinances or rules
1795 for the implementation of this chapter that are not inconsistent with this chapter.
1796 (11) (a) Except as provided in Subsection (11)(b), all penalties assessed and collected
1797 under the authority of this section shall be deposited in the General Fund.
1798 (b) The department may reimburse itself and local governments from monies collected
1799 from civil penalties for extraordinary expenses incurred in environmental enforcement
1800 activities.
1801 (c) The department shall regulate reimbursements by making rules that:
1802 (i) define qualifying environmental enforcement activities; and
1803 (ii) define qualifying extraordinary expenses.
1804 Section 43. Section 19-6-108.5 is amended to read:
1805 19-6-108.5. Management of hazardous waste generated outside Utah.
1806 (1) On and after July 1, 1992, any waste entering Utah for disposal or treatment,
1807 excluding incineration, that is classified by Utah as nonhazardous solid waste and by the state
1808 of origin as hazardous waste, and that exceeds the base volume provided in Subsection (2) for
1809 each receiving facility or site, shall be treated according to the same treatment standards to
1810 which it would have been subject had it remained in the state where it originated. However, if
1811 those standards are less protective of human health or the environment than the treatment
1812 standards applicable under Utah law, the waste shall be treated in compliance with the Utah
1813 standards.
1814 (2) The base volume provided in Subsection (1) for each receiving facility or site is the
1815 average of the annual quantities of nonhazardous solid waste that originated outside Utah and
1816 were received by the facility or site in calendar years 1990 and 1991.
1817 (3) (a) The base volume for each receiving facility or site that has an operating plan
1818 approved prior to July 1, 1992, but did not receive nonhazardous solid waste originating
1819 outside Utah during calendar years 1990 and 1991, shall be the average of annual quantities of
1820 out-of-state nonhazardous waste the facility or site received during the 24 months following the
1821 date of initial receipt of nonhazardous waste originating outside Utah.
1822 (b) The base determined under Subsection (3)(a) applies to the facility or site on and
1823 after July 1, 1995, regardless of the amount of nonhazardous waste originating outside Utah
1824 received by the facility or site prior to this date.
1825 Section 44. Section 19-6-316 is amended to read:
1826 19-6-316. Liability for costs of remedial investigations -- Liability agreements.
1827 (1) The executive director may recover only a proportionate share of costs of any
1828 remedial investigation performed under Sections 19-6-314 and 19-6-315 from each responsible
1829 party, as provided in this section.
1830 (2) (a) In apportioning responsibility for the remedial investigation, or liability for the
1831 costs of the remedial investigation, in any administrative proceeding or judicial action, the
1832 following standards apply:
1833 (i) liability shall be apportioned in proportion to each responsible party's respective
1834 contribution to the release;
1835 (ii) the apportionment of liability shall be based on equitable factors, including the
1836 quantity, mobility, persistence, and toxicity of hazardous substances contributed by a
1837 responsible party, and the comparative behavior of a responsible party in contributing to the
1838 release, relative to other responsible parties.
1839 (b) Liability may not be apportioned against a current or previous owner or operator
1840 who acquired or became the operator of the facility before March 18, 1985, who may otherwise
1841 be a responsible party but who did not know that any hazardous material which is the subject of
1842 a release was on, in, or at the facility prior to acquisition or operation of the facility, and the
1843 release is not the result of an act or omission of the current or previous owner or operator.
1844 (c) Liability may not be apportioned against a current or previous owner or operator
1845 who acquired or became the operator of the facility on or after March 18, 1985, who may
1846 otherwise be a responsible party but who did not know and had no reason to know, after having
1847 taken all appropriate inquiry into the previous ownership and uses of the facility, consistent
1848 with good commercial or customary practice at the time of the purchase, that any hazardous
1849 material which is the subject of a release was on, in, or at the facility prior to acquisition or
1850 operation of the facility, and the release is not the result of an act or omission of the current or
1851 previous owner or operator.
1852 (d) A responsible party who is not exempt under Subsection (2)(b) or (c) may be
1853 considered to have contributed to the release and may be liable for a proportionate share of
1854 costs as provided under this section either by affirmatively causing a release or by failing to
1855 take action to prevent or abate a release which has originated at or from the facility. A person
1856 whose property is contaminated by migration from an offsite release is not considered to have
1857 contributed to the release unless the person takes actions which exacerbate the release.
1858 (e) A responsible party who meets the criteria in Subsection (2)(b) or (c) or a person
1859 who is not considered to have contributed to a release under Subsection (2)(d) is not considered
1860 to have contributed to a release solely by failing to take abatement or remedial action pursuant
1861 to an administrative order.
1862 (f) (i) The burden of proving proportionate contribution shall be borne by each
1863 responsible party.
1864 (ii) If a responsible party does not prove his proportionate contribution, the court or the
1865 executive director shall apportion liability to the party based solely on available evidence and
1866 the standards of Subsection (2)(a).
1867 (iii) The ability of a responsible party to pay is not a factor in the apportionment of
1868 liability.
1869 (g) The court may not impose joint and several liability.
1870 (h) Each responsible party is strictly liable solely for his proportionate share of
1871 investigation costs.
1872 (3) The failure of the executive director to name all responsible parties is not a defense
1873 to an action under this section.
1874 (4) (a) Any party who incurs costs under this part in excess of his liability may seek
1875 contribution from any other party who is or may be liable under this part for the excess costs in
1876 district court.
1877 (b) In resolving claims made under Subsection (4)(a), the court shall allocate costs
1878 using the standards set forth in Subsection (2).
1879 (5) (a) A party who has resolved his liability in an agreement under Sections 19-6-314
1880 through this section is not liable for claims for contribution regarding matters addressed in the
1881 settlement.
1882 (b) (i) An agreement does not discharge any of the liability of responsible parties who
1883 are not parties to the agreement, unless the terms of the agreement provide otherwise.
1884 (ii) An agreement made under this Subsection (5)(b) reduces the potential liability of
1885 other responsible parties by the amount of the agreement.
1886 (6) (a) If the executive director obtains less than complete relief from a party who has
1887 resolved his liability in an agreement under Sections 19-6-314 through this section, the
1888 executive director may bring an action against any party who has not resolved his liability in an
1889 agreement.
1890 (b) In apportioning liability, the standards of Subsection (2) apply.
1891 (c) A party who resolved his liability for some or all of the costs in an agreement under
1892 Sections 19-6-314 through this section may seek contribution from any person who is not party
1893 to an agreement under Sections 19-6-314 through this section.
1894 (7) (a) An agreement made under Sections 19-6-314 through this section may provide
1895 that the executive director will pay for costs of actions that the parties have agreed to perform,
1896 but which the executive director has agreed to finance, under the agreement.
1897 (b) If the executive director makes payments from the fund, he may recover the amount
1898 paid using the authority of Sections 19-6-314 through this section or any other applicable
1899 authority.
1900 Section 45. Section 19-6-318 is amended to read:
1901 19-6-318. Remedial action liability -- Liability agreements.
1902 (1) (a) In apportioning responsibility for the remedial action in any administrative
1903 proceeding or judicial action under Sections 19-6-317 and 19-6-319 , the following standards
1904 apply:
1905 (i) liability shall be apportioned in proportion to each responsible party's respective
1906 contribution to the release;
1907 (ii) the apportionment of liability shall be based on equitable factors, including the
1908 quantity, mobility, persistence, and toxicity of hazardous substances contributed by a
1909 responsible party, and the comparative behavior of a responsible party in contributing to the
1910 release, relative to other responsible parties.
1911 (b) Liability may not be apportioned against a current or previous owner or operator
1912 who acquired or became the operator of the facility before March 18, 1985, who may otherwise
1913 be a responsible party but who did not know that any hazardous material which is the subject of
1914 a release was on, in, or at the facility prior to acquisition or operation of the facility, and the
1915 release is not the result of an act or omission of the current or previous owner or operator.
1916 (c) Liability may not be apportioned against a current or previous owner or operator
1917 who acquired or became the operator of the facility on or after March 18, 1985, who may
1918 otherwise be a responsible party but who did not know and had no reason to know, after having
1919 taken all appropriate inquiry into the previous ownership and uses of the facility, consistent
1920 with good commercial or customary practice at the time of the purchase, that any hazardous
1921 material which is the subject of a release was on, in, or at the facility prior to acquisition or
1922 operation of the facility, and the release is not the result of an act or omission of the current or
1923 previous owner or operator.
1924 (d) A responsible party who is not exempt under Subsection (1)(b) or (c) may be
1925 considered to have contributed to the release and may be liable for a proportionate share of
1926 costs as provided under this section either by affirmatively causing a release or by failing to
1927 take action to prevent or abate a release which has originated at or from the facility. A person
1928 whose property is contaminated by migration from an offsite release is not considered to have
1929 contributed to the release unless the person takes actions which exacerbate the release.
1930 (e) A responsible party who meets the criteria in Subsection (1)(b) or (c) or a person
1931 who is not considered to have contributed to a release under Subsection (1)(d) is not considered
1932 to have contributed to a release solely by failing to take abatement or remedial action pursuant
1933 to an administrative order.
1934 (f) (i) The burden of proving proportionate contribution shall be borne by each
1935 responsible party.
1936 (ii) If a responsible party does not prove his proportionate contribution, the court or the
1937 director shall apportion liability to the party solely based on available evidence and the
1938 standards of Subsection (1)(a).
1939 (iii) The ability of a responsible party to pay is not a factor in the apportionment of
1940 liability.
1941 (g) The court may not impose joint and several liability.
1942 (h) Each responsible party is strictly liable solely for his proportionate share of
1943 remedial action costs.
1944 (2) The failure of the executive director to name all responsible parties is not a defense
1945 to an action under this section.
1946 (3) (a) Any party who incurs costs under Sections 19-6-317 through 19-6-320 in excess
1947 of his liability may seek contribution from any other party who is or may be liable under
1948 Sections 19-6-317 through 19-6-320 for the excess costs in district court.
1949 (b) In resolving claims made under Subsection (3)(a), the court shall allocate costs
1950 using the standards set forth in Subsection (1).
1951 (4) (a) A party who has resolved his liability in an agreement under Sections 19-6-317
1952 through 19-6-320 is not liable for claims for contribution regarding matters addressed in the
1953 settlement.
1954 (b) (i) An agreement does not discharge any of the liability of responsible parties who
1955 are not parties to the agreement, unless the terms of the agreement provide otherwise.
1956 (ii) An agreement made under this Subsection (4)(b) reduces the potential liability of
1957 other responsible parties by the amount of the agreement.
1958 (5) (a) If the executive director obtains less than complete relief from a party who has
1959 resolved his liability in an agreement under Sections 19-6-317 through 19-6-320 , the executive
1960 director may bring an action against any party who has not resolved his liability in an
1961 agreement.
1962 (b) In apportioning liability, the standards of Subsection (1) apply.
1963 (c) A party who resolved his liability for some or all of the costs in an agreement under
1964 Sections 19-6-317 through 19-6-320 may seek contribution from any person who is not party to
1965 an agreement under Sections 19-6-317 through 19-6-320 .
1966 (6) (a) An agreement made under Sections 19-6-317 through 19-6-320 may provide
1967 that the executive director will pay for costs of actions that the parties have agreed to perform,
1968 but which the executive director has agreed to finance, under the agreement.
1969 (b) If the executive director makes payments, he may recover the amount using the
1970 authority of Sections 19-6-317 through 19-6-320 or any other applicable authority.
1971 Section 46. Section 19-6-325 is amended to read:
1972 19-6-325. Voluntary agreements -- Parties -- Funds -- Enforcement.
1973 (1) (a) Under this part, and subject to Subsection (1)(b), the executive director may
1974 enter into a voluntary agreement with a responsible party providing for the responsible party to
1975 conduct an investigation or a cleanup action on sites that contain hazardous materials.
1976 (b) The executive director and a responsible party may not enter into a voluntary
1977 agreement under this part unless all known potentially responsible parties:
1978 (i) have been notified by either the executive director or the responsible party of the
1979 proposed agreement; and
1980 (ii) have been given an opportunity to comment on the proposed agreement prior to the
1981 parties' entering into the agreement.
1982 (2) (a) The executive director may receive funds from any responsible party that signs a
1983 voluntary agreement allowing the executive director to:
1984 (i) review any proposals outlining how the investigation or cleanup action is to be
1985 performed; and
1986 (ii) oversee the investigation or cleanup action.
1987 (b) Funds received by the executive director under this section shall be deposited in the
1988 fund and used by the executive director as provided in the voluntary agreement.
1989 (3) If a responsible party fails to perform as required under a voluntary agreement
1990 entered into under this part, the executive director may take action and seek penalties to enforce
1991 the agreement as provided in the agreement.
1992 (4) The executive director may not use the provisions of Section 19-6-310 , 19-6-316 ,
1993 or 19-6-318 to recover costs received or expended pursuant to a voluntary agreement from any
1994 person not a party to that agreement.
1995 (5) (a) Any party who incurs costs under a voluntary agreement in excess of his
1996 liability may seek contribution from any other party who is or may be liable under this part for
1997 the excess costs in district court.
1998 (b) In resolving claims made under Subsection (5)(a), the court shall allocate costs
1999 using the standards in Subsection 19-6-310 (2).
2000 (6) This section takes precedence over conflicting provisions in this chapter regarding
2001 agreements with responsible parties to conduct an investigation or cleanup action.
2002 Section 47. Section 19-6-402 is amended to read:
2003 19-6-402. Definitions.
2004 As used in this part:
2005 (1) "Abatement action" means action taken to limit, reduce, mitigate, or eliminate a
2006 release from an underground storage tank or petroleum storage tank, or to limit or reduce,
2007 mitigate, or eliminate the damage caused by that release.
2008 (2) "Board" means the Solid and Hazardous Waste Control Board created in Section
2009 19-1-106 .
2010 (3) "Bodily injury" means bodily harm, sickness, disease, or death sustained by any
2011 person.
2012 (4) "Certificate of compliance" means a certificate issued to a facility by the executive
2013 secretary:
2014 (a) demonstrating that an owner or operator of a facility containing one or more
2015 petroleum storage tanks has met the requirements of this part; and
2016 (b) listing all tanks at the facility, specifying which tanks may receive petroleum and
2017 which tanks have not met the requirements for compliance.
2018 (5) "Certificate of registration" means a certificate issued to a facility by the executive
2019 secretary demonstrating that an owner or operator of a facility containing one or more
2020 underground storage tanks has:
2021 (a) registered the tanks; and
2022 (b) paid the annual underground storage tank fee.
2023 (6) (a) "Certified underground storage tank consultant" means any person who:
2024 (i) meets the education and experience standards established by the board under
2025 Subsection 19-6-403 (1)(a)(vi) in order to provide or contract to provide information, opinions,
2026 or advice relating to underground storage tank management, release abatement, investigation,
2027 corrective action, or evaluation for a fee, or in connection with the services for which a fee is
2028 charged; and
2029 (ii) has submitted an application to the board and received a written statement of
2030 certification from the board.
2031 (b) "Certified underground storage tank consultant" does not include:
2032 (i) an employee of the owner or operator of the underground storage tank, or an
2033 employee of a business operation that has a business relationship with the owner or operator of
2034 the underground storage tank, and that markets petroleum products or manages underground
2035 storage tanks; or
2036 (ii) persons licensed to practice law in this state who offer only legal advice on
2037 underground storage tank management, release abatement, investigation, corrective action, or
2038 evaluation.
2039 (7) "Closed" means an underground storage tank no longer in use that has been:
2040 (a) emptied and cleaned to remove all liquids and accumulated sludges; and
2041 (b) either removed from the ground or filled with an inert solid material.
2042 (8) "Corrective action plan" means a plan for correcting a release from a petroleum
2043 storage tank that includes provisions for all or any of the following:
2044 (a) cleanup or removal of the release;
2045 (b) containment or isolation of the release;
2046 (c) treatment of the release;
2047 (d) correction of the cause of the release;
2048 (e) monitoring and maintenance of the site of the release;
2049 (f) provision of alternative water supplies to persons whose drinking water has become
2050 contaminated by the release; or
2051 (g) temporary or permanent relocation, whichever is determined by the executive
2052 secretary to be more cost-effective, of persons whose dwellings have been determined by the
2053 executive secretary to be no longer habitable due to the release.
2054 (9) "Costs" means any monies expended for:
2055 (a) investigation;
2056 (b) abatement action;
2057 (c) corrective action;
2058 (d) judgments, awards, and settlements for bodily injury or property damage to third
2059 parties;
2060 (e) legal and claims adjusting costs incurred by the state in connection with judgments,
2061 awards, or settlements for bodily injury or property damage to third parties; or
2062 (f) costs incurred by the state risk manager in determining the actuarial soundness of
2063 the fund.
2064 (10) "Covered by the fund" means the requirements of Section 19-6-424 have been
2065 met.
2066 (11) "Dwelling" means a building that is usually occupied by a person lodging there at
2067 night.
2068 (12) "Enforcement proceedings" means a civil action or the procedures to enforce
2069 orders established by Section 19-6-425 .
2070 (13) "Executive secretary" means the executive secretary of the board.
2071 (14) "Facility" means all underground storage tanks located on a single parcel of
2072 property or on any property adjacent or contiguous to that parcel.
2073 (15) "Fund" means the Petroleum Storage Tank Trust Fund created in Section
2074 19-6-409 .
2075 (16) "Loan fund" means the Petroleum Storage Tank Loan Fund created in Section
2076 19-6-405.3 .
2077 (17) "Operator" means any person in control of or who is responsible on a daily basis
2078 for the maintenance of an underground storage tank that is in use for the storage, use, or
2079 dispensing of a regulated substance.
2080 (18) "Owner" means:
2081 (a) in the case of an underground storage tank in use on or after November 8, 1984, any
2082 person who owns an underground storage tank used for the storage, use, or dispensing of a
2083 regulated substance; and
2084 (b) in the case of any underground storage tank in use before November 8, 1984, but
2085 not in use on or after November 8, 1984, any person who owned the tank immediately before
2086 the discontinuance of its use for the storage, use, or dispensing of a regulated substance.
2087 (19) "Petroleum" includes crude oil or any fraction of crude oil that is liquid at 60
2088 degrees Fahrenheit and at a pressure of 14.7 pounds per square inch absolute.
2089 (20) "Petroleum storage tank" means a tank that:
2090 (a) (i) is underground;
2091 (ii) is regulated under Subtitle I of the Resource Conservation and Recovery Act, 42
2092 U.S.C. Section 6991c, et seq.; and
2093 (iii) contains petroleum; or
2094 (b) is a tank that the owner or operator voluntarily submits for participation in the
2095 Petroleum Storage Tank Trust Fund under Section 19-6-415 .
2096 (21) "Petroleum Storage Tank Restricted Account" means the account created in
2097 Section 19-6-405.5 .
2098 (22) "Program" means the Environmental Assurance Program under Section
2099 19-6-410.5 .
2100 (23) "Property damage" means physical injury to or destruction of tangible property
2101 including loss of use of that property.
2102 (24) "Regulated substance" means petroleum and petroleum-based substances
2103 comprised of a complex blend of hydrocarbons derived from crude oil through processes of
2104 separation, conversion, upgrading, and finishing, and includes motor fuels, jet fuels, distillate
2105 fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils.
2106 (25) "Release" means any spilling, leaking, emitting, discharging, escaping, leaching,
2107 or disposing from an underground storage tank or petroleum storage tank. The entire release is
2108 considered a single release.
2109 (26) (a) "Responsible party" means any person who:
2110 (i) is the owner or operator of a facility;
2111 (ii) owns or has legal or equitable title in a facility or an underground storage tank;
2112 (iii) owned or had legal or equitable title in the facility at the time any petroleum was
2113 received or contained at the facility;
2114 (iv) operated or otherwise controlled activities at the facility at the time any petroleum
2115 was received or contained at the facility; or
2116 (v) is an underground storage tank installation company.
2117 (b) "Responsible party" as defined in Subsections (26)(a)(i), (ii), and (iii) does not
2118 include:
2119 (i) any person who is not an operator and, without participating in the management of a
2120 facility and otherwise not engaged in petroleum production, refining, and marketing, holds
2121 indicia of ownership:
2122 (A) primarily to protect his security interest in the facility; or
2123 (B) as a fiduciary or custodian under Title 75, Utah Uniform Probate Code, or under an
2124 employee benefit plan; or
2125 (ii) governmental ownership or control of property by involuntary transfers as provided
2126 in CERCLA Section 101(20)(D), 42 U.S.C. Sec. 9601(20)(D).
2127 (c) The exemption created by Subsection (26)(b)(i)(B) does not apply to actions taken
2128 by the state or its officials or agencies under this part.
2129 (d) The terms and activities "indicia of ownership," "primarily to protect a security
2130 interest," "participation in management," and "security interest" under this part are in
2131 accordance with 40 CFR Part 280, Subpart I, as amended, and 42 U.S.C. Sec. 6991b(h)(9).
2132 (e) The terms "participate in management" and "indicia of ownership" as defined in 40
2133 CFR Part 280, Subpart I, as amended, and 42 U.S.C. Sec. 6991b(h)(9) include and apply to the
2134 fiduciaries listed in Subsection (26)(b)(i)(B).
2135 (27) "Soil test" means a test, established or approved by board rule, to detect the
2136 presence of petroleum in soil.
2137 (28) "State cleanup appropriation" means the money appropriated by the Legislature to
2138 the department to fund the investigation, abatement, and corrective action regarding releases
2139 not covered by the fund.
2140 (29) "Underground storage tank" means any tank regulated under Subtitle I, Resource
2141 Conservation and Recovery Act, 42 U.S.C. Sec. 6991c, et seq., including:
2142 (a) a petroleum storage tank;
2143 (b) underground pipes and lines connected to a storage tank; and
2144 (c) any underground ancillary equipment and containment system.
2145 (30) "Underground storage tank installation company" means any person, firm,
2146 partnership, corporation, governmental entity, association, or other organization who installs
2147 underground storage tanks.
2148 (31) "Underground storage tank installation company permit" means a permit issued to
2149 an underground storage tank installation company by the executive secretary.
2150 (32) "Underground storage tank technician" means a person employed by and acting
2151 under the direct supervision of a certified underground storage tank consultant to assist in
2152 carrying out the functions described in Subsection (6)(a).
2153 Section 48. Section 19-6-703 is amended to read:
2154 19-6-703. Definitions.
2155 (1) "Board" means the Solid and Hazardous Waste Control Board created in Section
2156 19-1-106 .
2157 (2) "Commission" means the State Tax Commission.
2158 (3) "Department" means the Department of Environmental Quality created in Title 19,
2159 Chapter 1, General Provisions.
2160 (4) "Division" means the Division of Solid and Hazardous Waste as created in Section
2161 19-1-105 .
2162 (5) "DIY" means do it yourself.
2163 (6) "DIYer" means a person who generates used oil through household activities,
2164 including maintenance of personal vehicles.
2165 (7) "DIYer used oil" means used oil a person generates through household activities,
2166 including maintenance of personal vehicles.
2167 (8) "DIYer used oil collection center" means any site or facility that accepts or
2168 aggregates and stores used oil collected only from DIYers.
2169 (9) "Executive secretary" means the executive secretary of the board.
2170 (10) "Hazardous waste" means any substance defined as hazardous waste under Title
2171 19, Chapter 6, Hazardous Substances.
2172 (11) "Lubricating oil" means the fraction of crude oil or synthetic oil used to reduce
2173 friction in an industrial or mechanical device. Lubricating oil includes rerefined oil.
2174 (12) "Lubricating oil vendor" means the person making the first sale of a lubricating oil
2175 in Utah.
2176 (13) "Manifest" means the form used for identifying the quantity and composition and
2177 the origin, routing, and destination of used oil during its transportation from the point of
2178 collection to the point of storage, processing, use, or disposal.
2179 (14) "Off-specification used oil" means used oil that exceeds levels of constituents and
2180 properties as specified by board rule and consistent with 40 CFR 279, Standards for the
2181 Management of Used Oil.
2182 (15) "On-specification used oil" means used oil that does not exceed levels of
2183 constituents and properties as specified by board rule and consistent with 40 CFR 279,
2184 Standards for the Management of Used Oil.
2185 (16) (a) "Processing" means chemical or physical operations under Subsection (16)(b)
2186 designed to produce from used oil, or to make used oil more amenable for production of:
2187 (i) gasoline, diesel, and other petroleum derived fuels;
2188 (ii) lubricants; or
2189 (iii) other products derived from used oil.
2190 (b) "Processing" includes:
2191 (i) blending used oil with virgin petroleum products;
2192 (ii) blending used oils to meet fuel specifications;
2193 (iii) filtration;
2194 (iv) simple distillation;
2195 (v) chemical or physical separation; and
2196 (vi) rerefining.
2197 (17) "Recycled oil" means oil reused for any purpose following its original use,
2198 including:
2199 (a) the purpose for which the oil was originally used; and
2200 (b) used oil processed or burned for energy recovery.
2201 (18) "Rerefining distillation bottoms" means the heavy fraction produced by vacuum
2202 distillation of filtered and dehydrated used oil. The composition varies with column operation
2203 and feedstock.
2204 (19) "Used oil" means any oil, refined from crude oil or a synthetic oil, that has been
2205 used and as a result of that use is contaminated by physical or chemical impurities.
2206 (20) (a) "Used oil aggregation point" means any site or facility that accepts, aggregates,
2207 or stores used oil collected only from other used oil generation sites owned or operated by the
2208 owner or operator of the aggregation point, from which used oil is transported to the
2209 aggregation point in shipments of no more than 55 gallons.
2210 (b) A used oil aggregation point may also accept oil from DIYers.
2211 (21) "Used oil burner" means a person who burns used oil for energy recovery.
2212 (22) "Used oil collection center" means any site or facility registered with the state to
2213 manage used oil and that accepts or aggregates and stores used oil collected from used oil
2214 generators, other than DIYers, who are regulated under this part and bring used oil to the
2215 collection center in shipments of no more than 55 gallons and under the provisions of this part.
2216 Used oil collection centers may accept DIYer used oil also.
2217 (23) "Used oil fuel marketer" means any person who:
2218 (a) directs a shipment of off-specification used oil from its facility to a used oil burner;
2219 or
2220 (b) first claims the used oil to be burned for energy recovery meets the used oil fuel
2221 specifications of 40 CFR 279, Standards for the Management of Used Oil, except when the oil
2222 is to be burned in accordance with rules for on-site burning in space heaters in accordance with
2223 40 CFR 279.
2224 (24) "Used oil generator" means any person, by site, whose act or process produces
2225 used oil or whose act first causes used oil to become subject to regulation.
2226 (25) "Used oil handler" means a person generating used oil, collecting used oil,
2227 transporting used oil, operating a transfer facility or aggregation point, processing or rerefining
2228 used oil, or marketing used oil.
2229 (26) "Used oil processor or rerefiner" means a facility that processes used oil.
2230 (27) "Used oil transfer facility" means any transportation-related facility, including
2231 loading docks, parking areas, storage areas, and other areas where shipments of used oil are
2232 held for more than 24 hours during the normal course of transportation and not longer than 35
2233 days.
2234 (28) (a) "Used oil transporter" means the following persons unless they are exempted
2235 under Subsection (28)(b):
2236 (i) any person who transports used oil;
2237 (ii) any person who collects used oil from more than one generator and transports the
2238 collected oil;
2239 (iii) except as exempted under Subsection (28)(b)(i), (ii), or (iii), any person who
2240 transports collected DIYer used oil from used oil generators, collection centers, aggregation
2241 points, or other facilities required to be permitted or registered under this part and where
2242 household DIYer used oil is collected; and
2243 (iv) owners and operators of used oil transfer facilities.
2244 (b) "Used oil transporter" does not include:
2245 (i) persons who transport oil on site;
2246 (ii) generators who transport shipments of used oil totalling 55 gallons or less from the
2247 generator to a used oil collection center as allowed under 40 CFR 279.24, Off-site Shipments;
2248 (iii) generators who transport shipments of used oil totalling 55 gallons or less from the
2249 generator to a used oil aggregation point owned or operated by the same generator as allowed
2250 under 40 CFR 279.24, Off-site Shipments;
2251 (iv) persons who transport used oil generated by DIYers from the initial generator to a
2252 used oil generator, used oil collection center, used oil aggregation point, used oil processor or
2253 rerefiner, or used oil burner subject to permitting or registration under this part; or
2254 (v) railroads that transport used oil and are regulated under 49 U.S.C. Subtitle V, Rail
2255 Programs, and 49 U.S.C. 5101 et seq., federal Hazardous Materials Transportation Uniform
2256 Safety Act.
2257 Section 49. Section 19-6-706 is amended to read:
2258 19-6-706. Disposal of used oil -- Prohibitions.
2259 (1) (a) Except as authorized by the board or exempted in this section, a person may not
2260 place, discard, or otherwise dispose of used oil:
2261 (i) in any solid waste treatment, storage, or disposal facility operated by a political
2262 subdivision or a private entity, except as authorized for the disposal of used oil that is
2263 hazardous waste under state law;
2264 (ii) in sewers, drainage systems, septic tanks, surface or ground waters, watercourses,
2265 or any body of water; or
2266 (iii) on the ground.
2267 (b) A person who unknowingly disposes of used oil in violation of Subsection (1)(a)(i)
2268 is not guilty of a violation of this section.
2269 (2) (a) A person may dispose of an item or substance that contains de minimis amounts
2270 of oil in disposal facilities under Subsection (1)(a)(i) if:
2271 (i) to the extent reasonably possible all oil has been removed from the item or
2272 substance; and
2273 (ii) no free flowing oil remains in the item or substance.
2274 (b) (i) A nonterne plated used oil filter complies with this section if it is not mixed with
2275 hazardous waste and the oil filter has been gravity hot-drained by one of the following
2276 methods:
2277 (A) puncturing the filter antidrain back valve or the filter dome end and gravity
2278 hot-draining;
2279 (B) gravity hot-draining and crushing;
2280 (C) dismantling and gravity hot-draining; or
2281 (D) any other equivalent gravity hot-draining method that will remove used oil from
2282 the filter at least as effectively as the methods listed in this Subsection (2)(b)(i).
2283 (ii) As used in this Subsection (2), "gravity hot-drained" means drained for not less
2284 than 12 hours near operating temperature but above 60 degrees Fahrenheit.
2285 (3) A person may not mix or commingle used oil with the following substances, except
2286 as incidental to the normal course of processing, mechanical, or industrial operations:
2287 (a) solid waste that is to be disposed of in any solid waste treatment, storage, or
2288 disposal facility, except as authorized by the board under this chapter; or
2289 (b) any hazardous waste so the resulting mixture may not be recycled or used for other
2290 beneficial purpose as authorized under this part.
2291 (4) (a) This section does not apply to releases to land or water of de minimis quantities
2292 of used oil, except:
2293 (i) the release of de minimis quantities of used oil is subject to any regulation or
2294 prohibition under the authority of the department; and
2295 (ii) the release of de minimis quantities of used oil is subject to any rule made by the
2296 board under this part prohibiting the release of de minimis quantities of used oil to the land or
2297 water from tanks, pipes, or other equipment in which used oil is processed, stored, or otherwise
2298 managed by used oil handlers, except wastewater under Subsection 19-6-708 (2)(j).
2299 (b) As used in this Subsection (4), "de minimis quantities of used oil:"
2300 (i) means small spills, leaks, or drippings from pumps, machinery, pipes, and other
2301 similar equipment during normal operations; and
2302 (ii) does not include used oil discarded as a result of abnormal operations resulting in
2303 substantial leaks, spills, or other releases.
2304 (5) Used oil may not be used for road oiling, dust control, weed abatement, or other
2305 similar uses that have the potential to release used oil in the environment, except in compliance
2306 with Section 19-6-711 and board rule.
2307 (6) (a) (i) Facilities in existence on July 1, 1993, and subject to this section may apply
2308 to the executive secretary for an extension of time beyond that date to meet the requirements of
2309 this section.
2310 (ii) The executive secretary may grant an extension of time beyond July 1, 1993, upon
2311 a finding of need under Subsection (6)(b) or (c).
2312 (iii) The total of all extensions of time granted to one applicant under this Subsection
2313 (6)(a) may not extend beyond January 1, 1995.
2314 (b) The executive secretary upon receipt of a request for an extension of time may
2315 request from the facility any information the executive secretary finds reasonably necessary to
2316 evaluate the need for an extension. This information may include:
2317 (i) why the facility is unable to comply with the requirements of this section on or
2318 before July 1, 1993;
2319 (ii) the processes or functions which prevent compliance on or before July 1, 1993;
2320 (iii) measures the facility has taken and will take to achieve compliance; and
2321 (iv) a proposed compliance schedule, including a proposed date for being in
2322 compliance with this section.
2323 (c) Additional extensions of time may be granted by the executive secretary upon
2324 application by the facility and a showing by the facility that:
2325 (i) the additional extension is reasonably necessary; and
2326 (ii) the facility has made a diligent and good faith effort to comply with this section
2327 within the time frame of the prior extension.
2328 Section 50. Section 20A-1-703 is amended to read:
2329 20A-1-703. Proceedings by registered voter.
2330 (1) Any registered voter who has information that any provisions of this title have been
2331 violated by any candidate for whom the registered voter had the right to vote, by any personal
2332 campaign committee of that candidate, by any member of that committee, or by any election
2333 official, may file a verified petition with the lieutenant governor.
2334 (2) (a) The lieutenant governor shall gather information and determine if a special
2335 investigation is necessary.
2336 (b) If the lieutenant governor determines that a special investigation is necessary, the
2337 lieutenant governor shall refer the information to the attorney general, who shall:
2338 (i) bring a special proceeding to investigate and determine whether or not there has
2339 been a violation; and
2340 (ii) appoint special counsel to conduct that proceeding on behalf of the state.
2341 (3) If it appears from the petition or otherwise that sufficient evidence is obtainable to
2342 show that there is probable cause to believe that a violation has occurred, the attorney general
2343 shall:
2344 (a) grant leave to bring the proceeding; and
2345 (b) appoint special counsel to conduct the proceeding.
2346 (4) (a) If leave is granted, the registered voter may, by a special proceeding brought in
2347 the district court in the name of the state upon the relation of the registered voter, investigate
2348 and determine whether or not the candidate, candidate's personal campaign committee, any
2349 member of the candidate's personal campaign committee, or any election officer has violated
2350 any provision of this title.
2351 (b) (i) In the proceeding, the complaint shall:
2352 (A) be served with the summons; and
2353 (B) set forth the name of the person or persons who have allegedly violated this title
2354 and the grounds of those violations in detail.
2355 (ii) The complaint may not be amended except by leave of the court.
2356 (iii) The summons and complaint in the proceeding shall be filed with the court no
2357 later than five days after they are served.
2358 (c) (i) The answer to the complaint shall be served and filed within 10 days after the
2359 service of the summons and complaint.
2360 (ii) Any allegation of new matters in the answer shall be considered controverted by the
2361 adverse party without reply, and the proceeding shall be considered at issue and stand ready for
2362 trial upon five days' notice of trial.
2363 (d) (i) All proceedings initiated under this section have precedence over any other civil
2364 actions.
2365 (ii) The court shall always be considered open for the trial of the issues raised in this
2366 proceeding.
2367 (iii) The proceeding shall be tried and determined as a civil action without a jury, with
2368 the court determining all issues of fact and issues of law.
2369 (iv) If more than one proceeding is pending or the election of more than one person is
2370 investigated and contested, the court may:
2371 (A) order the proceedings consolidated and heard together; and
2372 (B) equitably apportion costs and disbursements.
2373 (e) (i) Either party may request a change of venue as provided by law in civil actions,
2374 but application for a change of venue must be made within five days after service of summons
2375 and complaint.
2376 (ii) The judge shall decide the request for a change of venue and issue any necessary
2377 orders within three days after the application is made.
2378 (iii) If a party fails to request a change of venue within five days of service, he has
2379 waived his right to a change of venue.
2380 (f) (i) If judgment is in favor of the plaintiff, the relator may petition the judge to
2381 recover his taxable costs and disbursements against the person whose right to the office is
2382 contested.
2383 (ii) The judge may not award costs to the defendant unless it appears that the
2384 proceeding was brought in bad faith.
2385 (iii) Subject to the limitations contained in Subsection (4)(f), the judge may decide
2386 whether or not to award costs and disbursements.
2387 (5) Nothing in this section may be construed to prohibit any other civil or criminal
2388 actions or remedies against alleged violators.
2389 (6) In the event a witness asserts a privilege against self-incrimination, testimony and
2390 evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of
2391 Immunity.
2392 Section 51. Section 20A-3-307 is amended to read:
2393 20A-3-307. Processing of absentee ballot.
2394 (1) Except as provided in Subsection (2), upon receipt of an envelope containing an
2395 absentee ballot, the election officer shall:
2396 (a) enclose the unopened envelope containing the absentee ballot and the written
2397 application of the absentee voter in a larger envelope;
2398 (b) seal that envelope and endorse it with:
2399 (i) the name or number of the proper voting precinct;
2400 (ii) the name and official title of the election officer; and
2401 (iii) the words "This envelope contains an absentee ballot and may only be opened on
2402 election day at the polls while the polls are open."; and
2403 (c) safely keep the envelope in his office until it is delivered by him to the proper
2404 election judges.
2405 (2) If the election officer receives envelopes containing absentee ballots too late to
2406 transmit them to the election judges on election day, the election officer shall retain those
2407 absentee ballots in a safe and secure place until they can be processed as provided in Section
2408 20A-3-309 .
2409 (3) (a) Except as provided in Subsection (3)(c), when reasonably possible, the election
2410 officer shall deliver or mail valid absentee ballots to the appropriate voting precinct election
2411 judges so that they may be processed at the voting precinct on election day.
2412 (b) If the election officer is unable to determine the voting precinct to which an
2413 absentee ballot should be sent, or if a valid absentee ballot is received too late for delivery on
2414 election day to election judges, the election officer shall retain the absentee ballot in a safe
2415 place until it can be processed as required by Section 20A-3-309 .
2416 (c) When the absentee ballots will be centrally counted, the election officer shall
2417 deliver those absentee ballots to the counting center on election day for counting.
2418 Section 52. Section 20A-7-501 is amended to read:
2419 20A-7-501. Initiatives.
2420 (1) (a) Except as provided in Subsection (1)(b), a person seeking to have an initiative
2421 submitted to a local legislative body or to a vote of the people for approval or rejection shall
2422 obtain legal signatures equal to:
2423 (i) 10% of all the votes cast in the county, city, or town for all candidates for governor
2424 at the last election at which a governor was elected if the total number of votes exceeds 25,000;
2425 (ii) 12-1/2% of all the votes cast in the county, city, or town for all candidates for
2426 governor at the last election at which a governor was elected if the total number of votes does
2427 not exceed 25,000 but is more than 10,000;
2428 (iii) 15% of all the votes cast in the county, city, or town for all candidates for governor
2429 at the last election at which a governor was elected if the total number of votes does not exceed
2430 10,000 but is more than 2,500;
2431 (iv) 20% of all the votes cast in the county, city, or town for all candidates for governor
2432 at the last election at which a governor was elected if the total number of votes does not exceed
2433 2,500 but is more than 500;
2434 (v) 25% of all the votes cast in the county, city, or town for all candidates for governor
2435 at the last election at which a governor was elected if the total number of votes does not exceed
2436 500 but is more than 250; and
2437 (vi) 30% of all the votes cast in the county, city, or town for all candidates for governor
2438 at the last election at which a governor was elected if the total number of votes does not exceed
2439 250.
2440 (b) In addition to the signature requirements of Subsection (1)(a), a person seeking to
2441 have an initiative submitted to a local legislative body or to a vote of the people for approval or
2442 rejection in a county, city, or town where the local legislative body is elected from council
2443 districts shall obtain, from each of a majority of council districts, legal signatures equal to the
2444 percentages established in Subsection (1)(a).
2445 (2) If the total number of certified names from each verified signature sheet equals or
2446 exceeds the number of names required by this section, the clerk or recorder shall deliver the
2447 proposed law to the local legislative body at its next meeting.
2448 (3) (a) The local legislative body shall either adopt or reject the proposed law without
2449 change or amendment within 30 days of receipt of the proposed law.
2450 (b) The local legislative body may:
2451 (i) adopt the proposed law and refer it to the people;
2452 (ii) adopt the proposed law without referring it to the people; or
2453 (iii) reject the proposed law.
2454 (c) If the local legislative body adopts the proposed law but does not refer it to the
2455 people, it is subject to referendum as with other local laws.
2456 (d) (i) If a county legislative body rejects a proposed county ordinance or amendment,
2457 or takes no action on it, the county clerk shall submit it to the voters of the county at the next
2458 regular general election.
2459 (ii) If a local legislative body rejects a proposed municipal ordinance or amendment, or
2460 takes no action on it, the municipal recorder or clerk shall submit it to the voters of the
2461 municipality at the next municipal general election.
2462 (e) (i) If the local legislative body rejects the proposed ordinance or amendment, or
2463 takes no action on it, the local legislative body may adopt a competing local law.
2464 (ii) The local legislative body shall prepare and adopt the competing local law within
2465 the 30 days allowed for its action on the measure proposed by initiative petition.
2466 (iii) If the local legislative body adopts a competing local law, the clerk or recorder
2467 shall submit it to the voters of the county or municipality at the same election at which the
2468 initiative proposal is submitted.
2469 (f) If conflicting local laws are submitted to the people at the same election and two or
2470 more of the conflicting measures are approved by the people, then the measure that receives the
2471 greatest number of affirmative votes shall control all conflicts.
2472 Section 53. Section 23-14-2.6 is amended to read:
2473 23-14-2.6. Regional advisory councils -- Creation -- Membership -- Duties -- Per
2474 diem and expenses.
2475 (1) There are created five regional advisory councils which shall consist of 12 to 15
2476 members each from the wildlife region whose boundaries are established for administrative
2477 purposes by the division.
2478 (2) The members shall include individuals who represent the following groups and
2479 interests:
2480 (a) agriculture;
2481 (b) sportsmen;
2482 (c) nonconsumptive wildlife;
2483 (d) locally elected public officials;
2484 (e) federal land agencies; and
2485 (f) the public at large.
2486 (3) The executive director of the Department of Natural Resources, in consultation
2487 with the director of the Division of Wildlife Resources, shall select the members from a list of
2488 nominees submitted by the respective interest group or agency.
2489 (4) The councils shall:
2490 (a) hear broad input, including recommendations, biological data, and information
2491 regarding the effects of wildlife;
2492 (b) gather information from staff, the public, and government agencies; and
2493 (c) make recommendations to the Wildlife Board in an advisory capacity.
2494 (5) (a) Except as required by Subsection (5)(b), each member shall serve a four-year
2495 term.
2496 (b) Notwithstanding the requirements of Subsection (5)(a), the executive director shall,
2497 at the time of appointment or reappointment, adjust the length of terms to ensure that the terms
2498 of council members are staggered so that approximately half of the council is appointed every
2499 two years.
2500 (6) When a vacancy occurs in the membership for any reason, the replacement shall be
2501 appointed for the unexpired term.
2502 (7) The councils shall determine:
2503 (a) the time and place of meetings; and
2504 (b) any other procedural matter not specified in this chapter.
2505 (8) Members of the councils shall complete an orientation course as provided in
2506 Subsection 23-14-2 (8).
2507 (9) (a) (i) Members who are not government employees shall receive no compensation
2508 or benefits for their services, but may receive per diem and expenses incurred in the
2509 performance of the member's official duties at the rates established by the Division of Finance
2510 under Sections 63A-3-106 and 63A-3-107 .
2511 (ii) Members may decline to receive per diem and expenses for their service.
2512 (b) (i) State government officer and employee members who do not receive salary, per
2513 diem, or expenses from their agency for their service may receive per diem and expenses
2514 incurred in the performance of their official duties from the council at the rates established by
2515 the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
2516 (ii) State government officer and employee members may decline to receive per diem
2517 and expenses for their service.
2518 (c) (i) Local government members who do not receive salary, per diem, or expenses
2519 from the entity that they represent for their service may receive per diem and expenses incurred
2520 in the performance of their official duties at the rates established by the Division of Finance
2521 under Sections 63A-3-106 and 63A-3-107 .
2522 (ii) Local government members may decline to receive per diem and expenses for their
2523 service.
2524 Section 54. Section 23-22-2 is amended to read:
2525 23-22-2. Acceptance of Acts of Congress.
2526 (1) The state assents to the provisions of 16 U.S.C. Sec. 669 et seq., Wildlife
2527 Restoration Act and 16 U.S.C. 777 et seq., Sport Fish Restoration Act.
2528 (2) The division shall conduct and establish cooperative fish and wildlife restoration
2529 projects as provided by the acts specified in Subsection (1) and rules promulgated under those
2530 acts.
2531 (3) The following revenues received by the state may not be used for any purpose other
2532 than the administration of the division:
2533 (a) revenue from the sale of any license, permit, tag, stamp, or certificate of registration
2534 that conveys to a person the privilege to take wildlife for sport or recreation, less reasonable
2535 vendor fees;
2536 (b) revenue from the sale, lease, rental, or other granting of rights of real or personal
2537 property acquired with revenue specified in Subsection (3)(a);
2538 (c) interest, dividends, or other income earned on revenue specified in Subsection
2539 (3)(a) or (b); and
2540 (d) federal aid project reimbursements to the extent that revenue specified in
2541 Subsection (3)(a) or (b) originally funded the project for which the reimbursement is being
2542 made.
2543 Section 55. Section 26-18-102 is amended to read:
2544 26-18-102. DUR Board -- Creation and membership -- Expenses.
2545 (1) There is created a 12-member Drug Utilization Review Board responsible for
2546 implementation of a retrospective and prospective DUR program.
2547 (2) (a) Except as required by Subsection (2)(b), as terms of current board members
2548 expire, the executive director shall appoint each new member or reappointed member to a
2549 four-year term.
2550 (b) Notwithstanding the requirements of Subsection (2)(a), the executive director shall,
2551 at the time of appointment or reappointment, adjust the length of terms to ensure that the terms
2552 of board members are staggered so that approximately half of the board is appointed every two
2553 years.
2554 (c) Persons appointed to the board may be reappointed upon completion of their terms,
2555 but may not serve more than two consecutive terms.
2556 (d) The executive director shall provide for geographic balance in representation on the
2557 board.
2558 (3) When a vacancy occurs in the membership for any reason, the replacement shall be
2559 appointed for the unexpired term.
2560 (4) The membership shall be comprised of the following:
2561 (a) four physicians who are actively engaged in the practice of medicine or osteopathic
2562 medicine in this state, to be selected from a list of nominees provided by the Utah Medical
2563 Association;
2564 (b) one physician in this state who is actively engaged in academic medicine;
2565 (c) three pharmacists who are actively practicing in retail pharmacy in this state, to be
2566 selected from a list of nominees provided by the Utah Pharmaceutical Association;
2567 (d) one pharmacist who is actively engaged in academic pharmacy;
2568 (e) one person who shall represent consumers;
2569 (f) one person who shall represent pharmaceutical manufacturers, to be recommended
2570 by the Pharmaceutical Manufacturers Association; and
2571 (g) one dentist licensed to practice in this state under Title 58, Chapter 69, Dentists and
2572 Dental Hygienists Act, who is actively engaged in the practice of dentistry, nominated by the
2573 Utah Dental Association.
2574 (5) Physician and pharmacist members of the board shall have expertise in clinically
2575 appropriate prescribing and dispensing of outpatient drugs.
2576 (6) The board shall elect a chair from among its members who shall serve a one-year
2577 term, and may serve consecutive terms.
2578 (7) (a) Members shall receive no compensation or benefits for their services, but may
2579 receive per diem and expenses incurred in the performance of the member's official duties at
2580 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
2581 (b) Members may decline to receive per diem and expenses for their service.
2582 (c) (i) Higher education members who do not receive salary, per diem, or expenses
2583 from the entity that they represent for their service may receive per diem and expenses incurred
2584 in the performance of their official duties from the committee at the rates established by the
2585 Division of Finance under Sections 63A-3-106 and 63A-3-107 .
2586 (ii) Higher education members may decline to receive per diem and expenses for their
2587 service.
2588 Section 56. Section 26A-1-111 is amended to read:
2589 26A-1-111. Removal of local health officer.
2590 (1) The local health officer may be removed for cause in accordance with this section
2591 by:
2592 (a) the board; or
2593 (b) a majority of the counties in the local health department if the county executives
2594 rescind, or withdraw, in writing the ratification of the local health officer.
2595 (2) (a) A hearing shall be granted, if requested by the local health officer, prior to
2596 removal of the local health officer.
2597 (b) If a hearing is requested, it shall be conducted by a five-member panel with:
2598 (i) two elected members from the county or counties in the local health department,
2599 selected by the county executives;
2600 (ii) two members of the board of the local health department who are not elected
2601 officials of the counties in the local health department, selected by the board; and
2602 (iii) one member selected by the members appointed under Subsections (2)(b)(i) and
2603 (ii), however, the member appointed under this Subsection (2)(b)(iii) may not be an elected
2604 official of the counties in the local health department and may not be a member of the board of
2605 the local health department.
2606 (c) (i) The hearing panel shall report its decision regarding termination to the board and
2607 to the counties in the local health department.
2608 (ii) The counties and board receiving the report shall vote on whether to retain or
2609 terminate the local health officer.
2610 (iii) The health officer is terminated if:
2611 (A) the board votes to terminate; or
2612 (B) a majority of the counties in the local health department vote to terminate.
2613 Section 57. Section 31A-5-217.5 is amended to read:
2614 31A-5-217.5. Variable contract law.
2615 (1) This section applies to all separate accounts that are used to support any one or
2616 more of the following:
2617 (a) variable life insurance policies that satisfy the requirements of Section 817, Internal
2618 Revenue Code;
2619 (b) variable annuity contracts, including modified guaranteed annuities; or
2620 (c) benefits under plans governed by the Employee Retirement Income Security Act of
2621 1974.
2622 (2) In the event of a conflict between this section and any other section of this title as it
2623 relates to these accounts, this section prevails.
2624 (3) A domestic life insurance company may establish one or more separate accounts,
2625 and may allocate to those accounts amounts, which include proceeds applied under optional
2626 modes of settlement or under dividend options, to provide for life insurance or annuities, and
2627 benefits incidental to life insurance or annuities, payable in fixed or variable amounts or both,
2628 subject to the following:
2629 (a) The income, gains, and losses, realized or unrealized, from assets allocated to a
2630 separate account shall be credited to or charged against the account, without regard to other
2631 income, gains, or losses of the company.
2632 (b) Except as may be provided with respect to reserves for guaranteed benefits and
2633 funds referred to in Subsection (3)(c):
2634 (i) amounts allocated to any separate account and accumulations on such amounts may
2635 be invested and reinvested without regard to any requirements or limitations prescribed by the
2636 laws of this state governing the investments of life insurance companies; and
2637 (ii) the investments in any such separate account may not be taken into account in
2638 applying the investment limitations that otherwise apply to the investments of the company.
2639 (c) Except with the approval of the commissioner and under any conditions as to
2640 investments and other matters as he may prescribe, which shall recognize the guaranteed nature
2641 of the benefits provided, reserves for benefits guaranteed as to dollar amount and duration, and
2642 funds guaranteed as to principal amount or stated rate of interest may not be maintained in a
2643 separate account.
2644 (d) Unless otherwise approved by the commissioner, assets allocated to a separate
2645 account shall be valued at their market value on the date of valuation, or if there is no readily
2646 available market, then as provided under the terms of the contract or the rules or other written
2647 agreement that applies to the separate account. However, unless otherwise approved by the
2648 commissioner, the portion of any of the assets of the separate account equal to the company's
2649 reserve liability with regard to the guaranteed benefits and funds referred to in Subsection
2650 (3)(c) shall be valued in accordance with the rules that otherwise apply to the company's assets.
2651 (e) Amounts allocated to a separate account in the exercise of the power granted by this
2652 section shall be owned by the company, and the company may not be, nor hold itself out to be,
2653 a trustee with respect to those amounts. If, and to the extent provided under the applicable
2654 contracts, that portion of the assets of any separate account that is equal to the reserves and
2655 other contract liabilities with respect to the account may not be chargeable with liabilities
2656 arising out of any other business the company may conduct.
2657 (f) A sale, exchange, or other transfer of assets may not be made by a company
2658 between any of its separate accounts or between any other investment account and one or more
2659 of its separate accounts unless, in case of a transfer into a separate account, the transfer is made
2660 solely to establish the account or to support the operation of the contracts with respect to the
2661 separate account to which the transfer is made, and unless the transfer, whether into or from a
2662 separate account, is made by a transfer of cash, or by a transfer of securities having a readily
2663 determinable market value, if the transfer of securities is approved by the commissioner. The
2664 commissioner may approve other transfers among such accounts if, in his opinion, the transfers
2665 would not be inequitable.
2666 (g) To the extent a company considers it necessary to comply with any applicable
2667 federal or state laws, the company, with respect to any separate account, including any separate
2668 account which is a management investment company or a unit investment trust, may provide
2669 for persons having an interest in the account appropriate voting and other rights and special
2670 procedures for the conduct of the business of the account, including special rights and
2671 procedures relating to investment policy, investment advisory services, selection of
2672 independent public accountants, and the selection of a committee, the members of which need
2673 not be otherwise affiliated with the company, to manage the business of the account.
2674 (4) Any contract providing benefits payable in variable amounts delivered or issued for
2675 delivery in this state shall contain a statement of the essential features of the procedures to be
2676 followed by the insurance company in determining the dollar amount of the variable benefits.
2677 Any contract under which the benefits vary to reflect investment experience, including a group
2678 contract and any certificate in evidence of variable benefits issued under a group contract, shall
2679 state that the dollar amount will vary according to investment experience. The contract shall
2680 contain on its first page a statement to the effect that the benefits under the contract are on a
2681 variable basis.
2682 (5) (a) A company may not deliver or issue for delivery within this state variable
2683 contracts unless it is licensed or organized to do a life insurance or annuity business in this
2684 state, and the commissioner is satisfied that its condition or method of operation in connection
2685 with the issuance of such contracts will not render its operation hazardous to the public or its
2686 policyholders in this state. In this connection, the commissioner shall consider among other
2687 things:
2688 (i) the history and financial condition of the company;
2689 (ii) the character, responsibility, and fitness of the officers and directors of the
2690 company; and
2691 (iii) (A) the law and regulation under which the company is authorized in the state of
2692 domicile to issue variable contracts[
2693 (B) the state of entry of an alien company shall be considered its place of domicile for
2694 the purposes of Subsection (5)(a)(iii)(A).
2695 (b) If the company is a subsidiary of an admitted life insurance company, or affiliated
2696 with such a company through common management or ownership, it may be considered by the
2697 commissioner to have met the provisions of this section if either it or the parent or the affiliated
2698 company meets the requirements of this section.
2699 (6) Notwithstanding any other provision of law, the commissioner shall have sole
2700 authority to regulate the issuance and sale of variable contracts, and to make rules necessary
2701 and appropriate to carry out the purposes and provisions of this chapter.
2702 (7) (a) Except for Sections 31A-22-402 , 31A-22-407 , and 31A-22-409 , in the case of a
2703 variable annuity contract and Sections 31A-22-402 , 31A-22-407 , and 31A-22-408 in the case
2704 of a variable life insurance policy, and except as otherwise provided in this chapter, all
2705 pertinent provisions of this title apply to separate accounts and contracts relating to the separate
2706 accounts. Any individual variable life insurance contract, delivered or issued for delivery in
2707 this state shall contain grace, reinstatement, and nonforfeiture provisions appropriate to the
2708 contract.
2709 (b) The reserve liability for variable contracts shall be established in accordance with
2710 actuarial procedures that recognize the variable nature of the benefits provided and any
2711 mortality guarantees.
2712 Section 58. Section 31A-8-103 is amended to read:
2713 31A-8-103. Applicability to other provisions of law.
2714 (1) (a) Except for exemptions specifically granted under this title, an organization is
2715 subject to regulation under all of the provisions of this title.
2716 (b) Notwithstanding any provision of this title, an organization licensed under this
2717 chapter:
2718 (i) is wholly exempt from:
2719 (A) Chapter 7, Nonprofit Health Service Insurance Corporations;
2720 (B) Chapter 9, Insurance Fraternals;
2721 (C) Chapter 10, Annuities;
2722 (D) Chapter 11, Motor Clubs;
2723 (E) Chapter 12, State Risk Management Fund;
2724 (F) Chapter 13, Employee Welfare Funds and Plans;
2725 (G) Chapter 19a, Utah Rate Regulation Act; and
2726 (H) Chapter 28, Guaranty Associations; and
2727 (ii) is not subject to:
2728 (A) Chapter 3, Department Funding, Fees, and Taxes, except for Part 1, Funding the
2729 Insurance Department;
2730 (B) Section 31A-4-107 ;
2731 (C) Chapter 5, Domestic Stock and Mutual Insurance Corporations, except for
2732 provisions specifically made applicable by this chapter;
2733 (D) Chapter 14, Foreign Insurers, except for provisions specifically made applicable by
2734 this chapter;
2735 (E) Chapter 17, Determination of Financial Condition, except:
2736 (I) [
2737 (II) as made applicable by the commissioner by rule consistent with this chapter;
2738 (F) Chapter 18, Investments, except as made applicable by the commissioner by rule
2739 consistent with this chapter; and
2740 (G) Chapter 22, Contracts in Specific Lines, except for [
2741 Accident and Health Insurance, Part 7, Group Accident and Health Insurance, and Part 12,
2742 Reinsurance.
2743 (2) The commissioner may by rule waive other specific provisions of this title that the
2744 commissioner considers inapplicable to health maintenance organizations or limited health
2745 plans, upon a finding that the waiver will not endanger the interests of:
2746 (a) enrollees;
2747 (b) investors; or
2748 (c) the public.
2749 (3) Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act, and Title 16,
2750 Chapter 10a, Utah Revised Business Corporation Act, do not apply to an organization except as
2751 specifically made applicable by:
2752 (a) this chapter;
2753 (b) a provision referenced under this chapter; or
2754 (c) a rule adopted by the commissioner to deal with corporate law issues of health
2755 maintenance organizations that are not settled under this chapter.
2756 (4) (a) Whenever in this chapter, Chapter 5, Domestic Stock and Mutual Insurance
2757 Corporations, or Chapter 14, Foreign Insurers, is made applicable to an organization, the
2758 application is:
2759 (i) of those provisions that apply to a mutual corporation if the organization is
2760 nonprofit; and
2761 (ii) of those that apply to a stock corporation if the organization is for profit.
2762 (b) When Chapter 5, Domestic Stock and Mutual Insurance Corporations, or Chapter
2763 14, Foreign Insurers, is made applicable to an organization under this chapter, "mutual" means
2764 nonprofit organization.
2765 (5) Solicitation of enrollees by an organization is not a violation of any provision of
2766 law relating to solicitation or advertising by health professionals if that solicitation is made in
2767 accordance with:
2768 (a) this chapter; and
2769 (b) Chapter 23a, Insurance Marketing - Licensing Producers, Consultants, and
2770 Reinsurance Intermediaries.
2771 (6) This title does not prohibit any health maintenance organization from meeting the
2772 requirements of any federal law that enables the health maintenance organization to:
2773 (a) receive federal funds; or
2774 (b) obtain or maintain federal qualification status.
2775 (7) Except as provided in Section 31A-8-501 , an organization is exempt from statutes
2776 in this title or department rules that restrict or limit the organization's freedom of choice in
2777 contracting with or selecting health care providers, including Section 31A-22-618 .
2778 (8) An organization is exempt from the assessment or payment of premium taxes
2779 imposed by Sections 59-9-101 through 59-9-104 .
2780 Section 59. Section 31A-15-202 is amended to read:
2781 31A-15-202. Definitions.
2782 As used in this part:
2783 (1) "Completed operations liability" means liability, including liability for activities
2784 which are completed or abandoned before the date of the occurrence giving rise to the liability,
2785 arising out of the installation, maintenance, or repair of any product at a site which is not
2786 owned or controlled by:
2787 (a) any person who performs that work; or
2788 (b) any person who hires an independent contractor to perform that work.
2789 (2) "Domicile," for purposes of determining the state in which a purchasing group is
2790 domiciled, means:
2791 (a) for a corporation, the state in which the purchasing group is incorporated; and
2792 (b) for an unincorporated entity, the state of its principal place of business.
2793 (3) "Hazardous financial condition" means that a risk retention group, based on its
2794 present or reasonably anticipated financial condition, although not yet financially impaired or
2795 insolvent, is unlikely to be able:
2796 (a) to meet obligations to policyholders with respect to known claims and reasonably
2797 anticipated claims; or
2798 (b) to pay other obligations in the normal course of business.
2799 (4) "Insurance" means primary insurance, excess insurance, reinsurance, surplus lines
2800 insurance, and any other arrangement for shifting and distributing risk which is determined to
2801 be insurance under the laws of this state.
2802 (5) (a) "Liability" means legal liability for damages, including costs of defense, legal
2803 costs and fees, and other claims expenses because of injuries to other persons, damage to their
2804 property, or other damage or loss to other persons, resulting from or arising out of:
2805 (i) any profit or nonprofit business, trade, product, professional or other services,
2806 premises, or operations; or
2807 (ii) any activity of any state or local government or any agency or political subdivision
2808 of any state or local government.
2809 (b) "Liability" does not include personal risk liability and an employer's liability with
2810 respect to its employees other than legal liability under the federal Employers' Liability Act.
2811 (6) "NAIC" means the National Association of Insurance Commissioners.
2812 (7) "Personal risk liability" means liability for damages because of injury to any person,
2813 damage to property, or other loss or damage resulting from any personal, familial, or household
2814 responsibilities or activities rather than from responsibilities or activities referred to in
2815 Subsection (5).
2816 (8) "Plan of operation or a feasibility study" means an analysis which presents the
2817 expected activities and results of a risk retention group, including:
2818 (a) information sufficient to verify that its members are engaged in businesses or
2819 activities similar or related with respect to the liability to which members are exposed by virtue
2820 of any related, similar or common business, trade, product, services, premises or operations;
2821 (b) for each state in which it intends to operate, the coverages, deductibles, coverage
2822 limits, rates, and rating classification systems for each line of insurance the group intends to
2823 offer;
2824 (c) historical and expected loss experience of the proposed members and national
2825 experience of similar exposures to the extent that this experience is reasonably available;
2826 (d) pro forma financial statements and projections;
2827 (e) appropriate opinions by a qualified, independent casualty actuary, including a
2828 determination of minimum premium or participation levels required to commence operations
2829 and to prevent a hazardous financial condition;
2830 (f) identification of management, underwriting and claims procedures, marketing
2831 methods, managerial oversight methods, investment policies, and reinsurance agreements;
2832 (g) identification of each state in which the risk retention group has obtained, or sought
2833 to obtain, a charter and license, and a description of its status in each such state; and
2834 (h) any other matters required by the commissioner of the state in which the risk
2835 retention group is chartered for liability insurance companies authorized by the insurance laws
2836 of that state.
2837 (9) (a) "Product liability" means liability for damages because of any personal injury,
2838 death, emotional harm, consequential economic damage, or property damage, including
2839 damages resulting from the loss of use of property, if the liability arises out of the manufacture,
2840 design, importation, distribution, packaging, labeling, lease, or sale of a product.
2841 (b) "Product liability" does not include the liability of any person for those damages
2842 described in Subsection (9)(a) if the product involved was in the possession of the person when
2843 the incident giving rise to the claim occurred.
2844 (10) "Purchasing group" means any group which:
2845 (a) has as one of its purposes the purchase of liability insurance on a group basis;
2846 (b) purchases liability insurance only for its group members and only to cover their
2847 similar or related liability exposure, as described in Subsection (10)(c);
2848 (c) is composed of members whose businesses or activities are similar or related with
2849 respect to the liability to which members are exposed by virtue of any related, similar, or
2850 common business, trade, products, services, premises, or operations; and
2851 (d) is domiciled in any state.
2852 (11) "Risk retention group" means any corporation or other limited liability
2853 association:
2854 (a) whose primary activity consists of assuming and spreading all, or any portion of,
2855 the liability exposure of its group members;
2856 (b) which is organized for the primary purpose of conducting the activity described
2857 under Subsection (11)(a);
2858 (c) which:
2859 (i) is chartered and licensed as a liability insurance company and authorized to engage
2860 in the business of insurance under the laws of any state; or
2861 (ii) (A) before January 1, 1985, was chartered or licensed and authorized to engage in
2862 the business of insurance under the laws of Bermuda or the Cayman Islands and, before
2863 January 1, 1985, had certified to the insurance commissioner of at least one state that it
2864 satisfied the capitalization requirements of that state;
2865 (B) however, any such group as described in Subsection (11)(c)(ii)(A) shall be
2866 considered to be a risk retention group only if it has been engaged in business continuously
2867 since January 1, 1985, and only for the purpose of continuing to provide insurance to cover
2868 product liability or completed operations liability, as these terms were defined in the Product
2869 Liability Risk Retention Act of 1981 before the date of the enactment of the Liability Risk
2870 Retention Act of 1986;
2871 (d) which does not exclude any person from membership in the group solely to provide
2872 for members of the group a competitive advantage over the excluded person;
2873 (e) which:
2874 (i) has as its owners only persons who comprise the membership of the risk retention
2875 group and who are provided insurance by the group; or
2876 (ii) has as its sole owner an organization which:
2877 (A) has as its members only persons who comprise the membership of the risk
2878 retention group; and
2879 (B) has as its owners only persons who comprise the membership of the risk retention
2880 group and who are provided insurance by the group;
2881 (f) whose members are engaged in businesses or activities similar or related with
2882 respect to the liability to which the members are exposed by virtue of any related, similar, or
2883 common business trade, products, services, premises or operations;
2884 (g) whose activities do not include providing insurance other than:
2885 (i) liability insurance for assuming and spreading all or any portion of the liability of its
2886 group members; and
2887 (ii) reinsurance with respect to the liability of any other risk retention group, or any
2888 members of the other group, which is engaged in businesses or activities so that the group or
2889 member meets the requirement described in Subsection (11)(f) for membership in the risk
2890 retention group which provides the reinsurance; and
2891 (h) the name of which includes the phrase "risk retention group."
2892 Section 60. Section 31A-16-106 is amended to read:
2893 31A-16-106. Standards and management of an insurer within a holding company
2894 system.
2895 (1) (a) Transactions within a holding company system to which an insurer subject to
2896 registration is a party are subject to the following standards:
2897 (i) the terms shall be fair and reasonable;
2898 (ii) charges or fees for services performed shall be reasonable;
2899 (iii) expenses incurred and payment received shall be allocated to the insurer in
2900 conformity with customary insurance accounting practices consistently applied;
2901 (iv) the books, accounts, and records of each party to all transactions shall be so
2902 maintained as to clearly and accurately disclose the nature and details of the transactions,
2903 including the accounting information necessary to support the reasonableness of the charges or
2904 fees to the respective parties; and
2905 (v) the insurer's surplus held for policyholders, following any dividends or distributions
2906 to shareholder affiliates, shall be reasonable in relation to the insurer's outstanding liabilities
2907 and shall be adequate to its financial needs.
2908 (b) The following transactions involving a domestic insurer and any person in its
2909 holding company system may not be entered into unless the insurer has notified the
2910 commissioner in writing of its intention to enter into the transaction at least 30 days prior to
2911 entering into the transaction, or within any shorter period the commissioner may permit, if the
2912 commissioner has not disapproved the transaction within the period:
2913 (i) sales, purchases, exchanges, loans or extensions of credit, guarantees, or
2914 investments if the transactions are equal to, or exceed as of the next preceding December 31:
2915 (A) for nonlife insurers, the lesser of 3% of the insurer's admitted assets or 25% of
2916 surplus held for policyholders;
2917 (B) for life insurers, 3% of the insurer's admitted assets;
2918 (ii) loans or extensions of credit made to any person who is not an affiliate, if the
2919 insurer makes the loans or extensions of credit with the agreement or understanding that the
2920 proceeds of the transactions, in whole or in substantial part, are to be used to make loans or
2921 extensions of credit to, to purchase assets of, or to make investments in, any affiliate of the
2922 insurer making the loans or extensions of credit if the transactions are equal to, or exceed as of
2923 the next preceding December 31:
2924 (A) for nonlife insurers, the lesser of 3% of the insurer's admitted assets or 25% of
2925 surplus held for policyholders;
2926 (B) for life insurers, 3% of the insurer's admitted assets;
2927 (iii) reinsurance agreements or modifications to reinsurance agreements in which the
2928 reinsurance premium or a change in the insurer's liabilities equals or exceeds 5% of the
2929 insurer's surplus held for policyholders, as of the next preceding December 31, including those
2930 agreements which may require as consideration the transfer of assets from an insurer to a
2931 nonaffiliate, if an agreement or understanding exists between the insurer and the nonaffiliate
2932 that any portion of the assets will be transferred to one or more affiliates of the insurer;
2933 (iv) all management agreements, service contracts, and all cost-sharing arrangements;
2934 (v) any material transactions, specified by rule, which the commissioner determines
2935 may adversely affect the interests of the insurer's policyholders; and
2936 (vi) this subsection may not be interpreted to authorize or permit any transactions
2937 which would be otherwise contrary to law in the case of an insurer not a member of the same
2938 holding company system.
2939 (c) A domestic insurer may not enter into transactions which are part of a plan or series
2940 of like transactions with persons within the holding company system if the purpose of the
2941 separate transactions is to avoid the statutory threshold amount and thus to avoid the review by
2942 the commissioner that would occur otherwise. If the commissioner determines that the
2943 separate transactions were entered into over any 12 month period for such a purpose, he may
2944 exercise his authority under Section 31A-16-110 .
2945 (d) The commissioner, in reviewing transactions pursuant to Subsection (1)(b), shall
2946 consider whether the transactions comply with the standards set forth in Subsection (1)(a) and
2947 whether they may adversely affect the interests of policyholders.
2948 (e) The commissioner shall be notified within 30 days of any investment of the
2949 domestic insurer in any one corporation, if the total investment in the corporation by the
2950 insurance holding company system exceeds 10% of the corporation's voting securities.
2951 (2) (a) A domestic insurer may not pay any extraordinary dividend or make any other
2952 extraordinary distribution to its shareholders until:
2953 (i) 30 days after the commissioner has received notice of the declaration of the
2954 dividend and has not within the 30-day period disapproved the payment; or
2955 (ii) the commissioner has approved the payment within the 30-day period.
2956 (b) For purposes of this subsection, an extraordinary dividend or distribution includes
2957 any dividend or distribution of cash or other property, fair market value of which, together with
2958 that of other dividends or distributions made within the preceding 12 months, exceeds the
2959 lesser of:
2960 (i) 10% of the insurer's surplus held for policyholders as of the next preceding
2961 December 31; or
2962 (ii) the net gain from operations of the insurer, if the insurer is a life insurer, or the net
2963 income, if the insurer is not a life insurer, not including realized capital gains, for the 12-month
2964 period ending the next preceding December 31;
2965 (iii) an extraordinary dividend does not include pro rata distributions of any class of the
2966 insurer's own securities.
2967 (c) In determining whether a dividend or distribution is extraordinary, an insurer other
2968 than a life insurer may carry forward net income from the previous two calendar years that has
2969 not already been paid out as dividends. This carry-forward shall be computed by taking the net
2970 income from the second and third preceding calendar years, not including realized capital
2971 gains, less dividends paid in the second and immediate preceding calendar years.
2972 (d) Notwithstanding any other provision of law, an insurer may declare an
2973 extraordinary dividend or distribution, which is conditioned upon the commissioner's approval
2974 of the dividend or distribution, and the declaration shall confer no rights upon shareholders
2975 until:
2976 (i) the commissioner has approved the payment of the dividend or distribution; or
2977 (ii) the commissioner has not disapproved the payment within the 30-day period
2978 referred to in Subsection (2)(a).
2979 (3) (a) Notwithstanding the control of a domestic insurer by any person, the officers
2980 and directors of the insurer may not be relieved of any obligation or liability to which they
2981 would otherwise be subject by law, and the insurer shall be managed so as to assure its separate
2982 operating identity consistent with this chapter.
2983 (b) Nothing in this section precludes a domestic insurer from having or sharing a
2984 common management or cooperative or joint use of personnel, property, or services with one or
2985 more other persons under arrangements meeting the standards of Subsection (1)(a).
2986 Section 61. Section 31A-17-506 is amended to read:
2987 31A-17-506. Computation of minimum standard by calendar year of issue.
2988 (1) Applicability of Section 31A-17-506 : The interest rates used in determining the
2989 minimum standard for the valuation shall be the calendar year statutory valuation interest rates
2990 as defined in this section for:
2991 (a) all life insurance policies issued in a particular calendar year, on or after the
2992 operative date of Subsection 31A-22-408 (6)(d);
2993 (b) all individual annuity and pure endowment contracts issued in a particular calendar
2994 year on or after January 1, 1982;
2995 (c) all annuities and pure endowments purchased in a particular calendar year on or
2996 after January 1, 1982, under group annuity and pure endowment contracts; and
2997 (d) the net increase, if any, in a particular calendar year after January 1, 1982, in
2998 amounts held under guaranteed interest contracts.
2999 (2) Calendar year statutory valuation interest rates:
3000 (a) The calendar year statutory valuation interest rates, "I," shall be determined as
3001 follows and the results rounded to the nearer 1/4 of 1%:
3002 (i) for life insurance:
3003 I = .03 + W(R1 - .03) + (W/2)(R2 - .09);
3004 (ii) for single premium immediate annuities and for annuity benefits involving life
3005 contingencies arising from other annuities with cash settlement options and from guaranteed
3006 interest contracts with cash settlement options:
3007 I = .03 + W(R - .03),
3008 where R1 is the lesser of R and .09,
3009 R2 is the greater of R and .09,
3010 R is the reference interest rate defined in Subsection (4), and
3011 W is the weighting factor defined in this section;
3012 (iii) for other annuities with cash settlement options and guaranteed interest contracts
3013 with cash settlement options, valued on an issue year basis, except as stated in Subsection
3014 (2)(a)(ii), the formula for life insurance stated in Subsection (2)(a)(i) shall apply to annuities
3015 and guaranteed interest contracts with guarantee durations in excess of 10 years, and the
3016 formula for single premium immediate annuities stated in Subsection (2)(a)(ii) shall apply to
3017 annuities and guaranteed interest contracts with guarantee duration of 10 years or less;
3018 (iv) for other annuities with no cash settlement options and for guaranteed interest
3019 contracts with no cash settlement options, the formula for single premium immediate annuities
3020 stated in Subsection (2)(a)(ii) shall apply[
3021 (v) for other annuities with cash settlement options and guaranteed interest contracts
3022 with cash settlement options, valued on a change in fund basis, the formula for single premium
3023 immediate annuities stated in Subsection (2)(a)(ii) shall apply.
3024 (b) However, if the calendar year statutory valuation interest rate for any life insurance
3025 policies issued in any calendar year determined without reference to this sentence differs from
3026 the corresponding actual rate for similar policies issued in the immediately preceding calendar
3027 year by less than 1/2 of 1% the calendar year statutory valuation interest rate for such life
3028 insurance policies shall be equal to the corresponding actual rate for the immediately preceding
3029 calendar year. For purposes of applying the immediately preceding sentence, the calendar year
3030 statutory valuation interest rate for life insurance policies issued in a calendar year shall be
3031 determined for 1980, using the reference interest rate defined in 1979, and shall be determined
3032 for each subsequent calendar year regardless of when Subsection 31A-22-408 (6)(d) becomes
3033 operative.
3034 (3) Weighting factors:
3035 (a) The weighting factors referred to in the formulas stated in Subsection (2) are given
3036 in the following tables:
3037 (i) (A) Weighting factors for life insurance:
3038