1     
REGULATORY IMPACT AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brad R. Wilson

5     
Senate Sponsor: Daniel Hemmert

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Administrative Rules Act and provisions governing the Office of
10     the Legislative Fiscal Analyst.
11     Highlighted Provisions:
12          This bill:
13          ▸     requires the legislative fiscal analyst, when evaluating proposed legislation, to
14     indicate whether the legislation would make changes in the regulatory burden for
15     state residents or businesses;
16          ▸     requires agencies to conduct an analysis before submitting new administrative rules
17     in order to show the regulatory impact the rule would have on state residents or
18     businesses;
19          ▸     provides requirements for the contents of the analysis; and
20          ▸     requires agencies to submit a summary of efforts made to comply with obligations
21     to assure that new administrative rules minimize negative fiscal impacts on small
22     businesses.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          36-12-13, as last amended by Laws of Utah 2014, Chapters 344 and 430
30          63G-3-301, as last amended by Laws of Utah 2016, Chapter 193
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 36-12-13 is amended to read:
34          36-12-13. Office of the Legislative Fiscal Analyst established -- Powers, functions,
35     and duties -- Qualifications.
36          (1) There is established an Office of the Legislative Fiscal Analyst as a permanent staff
37     office for the Legislature.
38          (2) The powers, functions, and duties of the Office of the Legislative Fiscal Analyst
39     under the supervision of the fiscal analyst are:
40          (a) to analyze in detail the state budget before the convening of each legislative session
41     and make recommendations to the Legislature on each item or program appearing in the
42     budget, including:
43          (i) funding for and performance of programs, acquisitions, and services currently
44     undertaken by state government to determine whether each department, agency, institution, or
45     program should:
46          (A) continue at its current level of expenditure;
47          (B) continue at a different level of expenditure; or
48          (C) be terminated; and
49          (ii) increases or decreases to spending authority and other resource allocations for the
50     current and future fiscal years;
51          (b) to prepare cost estimates on all proposed bills that anticipate state government
52     expenditures;
53          (c) to prepare cost estimates on all proposed bills that anticipate expenditures by
54     county, municipal, local district, or special service district governments;
55          (d) to prepare cost estimates on all proposed bills that anticipate direct expenditures by
56     any Utah resident or business, and the cost to the overall impacted Utah resident or business
57     population;
58          (e) to indicate whether each proposed bill will impact the regulatory burden for Utah
59     residents or businesses, and if so:
60          (i) whether the impact increases or decreases the regulatory burden; and
61          (ii) whether the change in burden is high, medium, or low;
62          [(e)] (f) to prepare a review and analysis of revenue estimates for existing and proposed
63     revenue acts, which shall include a comparison of current estimates to 15-year trends by tax
64     type;
65          [(f)] (g) to report instances in which the administration may be failing to carry out the
66     expressed intent of the Legislature;
67          [(g)] (h) to propose and analyze statutory changes for more effective operational
68     economies or more effective administration;
69          [(h)] (i) to prepare, before each annual general session of the Legislature, a summary
70     showing the current status of the following as compared to the past nine fiscal years:
71          (i) debt;
72          (ii) long-term liabilities;
73          (iii) contingent liabilities;
74          (iv) General Fund borrowing;
75          (v) reserves;
76          (vi) fund and nonlapsing balances; and
77          (vii) cash funded capital investments;
78          [(i)] (j) to make recommendations for addressing the items described in Subsection
79     (2)(h) in the upcoming annual general session of the Legislature;
80          [(j)] (k) to prepare, after each session of the Legislature, a summary showing the effect
81     of the final legislative program on the financial condition of the state;
82          [(k)] (l) to conduct organizational and management improvement studies;
83          [(l)] (m) to prepare and deliver upon request of any interim committee or the
84     Legislative Management Committee, reports on the finances of the state and on anticipated or
85     proposed requests for appropriations;
86          [(m)] (n) to recommend areas for research studies by the executive department or the
87     interim committees;
88          [(n)] (o) to appoint and develop a professional staff within budget limitations;
89          [(o)] (p) to prepare and submit the annual budget request for the office;
90          [(p)] (q) to develop a taxpayer receipt:
91          (i) available to taxpayers through a website; and
92          (ii) that allows a taxpayer to view on the website an estimate of how the taxpayer's tax
93     dollars are expended for government purposes; and
94          [(q)] (r) to publish or provide other information on taxation and government
95     expenditures that may be accessed by the public.
96          (3) The Office of the Legislative Fiscal Analyst shall report the review and analysis
97     required under Subsection (2)[(e)](f) to the Executive Appropriations Committee of the
98     Legislature before each upcoming annual general session of the Legislature.
99          (4) The legislative fiscal analyst shall have a master's degree in public administration,
100     political science, economics, accounting, or the equivalent in academic or practical experience.
101          (5) In carrying out the duties provided for in this section, the legislative fiscal analyst
102     may obtain access to all records, documents, and reports necessary to the scope of the
103     legislative fiscal analyst's duties according to the procedures contained in Title 36, Chapter 14,
104     Legislative Subpoena Powers.
105          Section 2. Section 63G-3-301 is amended to read:
106          63G-3-301. Rulemaking procedure.
107          (1) An agency authorized to make rules is also authorized to amend or repeal those
108     rules.
109          (2) Except as provided in Sections 63G-3-303 and 63G-3-304, when making,
110     amending, or repealing a rule agencies shall comply with:
111          (a) the requirements of this section;
112          (b) consistent procedures required by other statutes;
113          (c) applicable federal mandates; and
114          (d) rules made by the department to implement this chapter.
115          (3) Subject to the requirements of this chapter, each agency shall develop and use
116     flexible approaches in drafting rules that meet the needs of the agency and that involve persons
117     affected by the agency's rules.
118          (4) (a) Each agency shall file its proposed rule and rule analysis with the office.
119          (b) Rule amendments shall be marked with new language underlined and deleted
120     language struck out.
121          (c) (i) The office shall publish the information required under Subsection (8) on the
122     rule analysis and the text of the proposed rule in the next issue of the bulletin.
123          (ii) For rule amendments, only the section or subsection of the rule being amended
124     need be printed.
125          (iii) If the executive director or the executive director's designee determines that the
126     rule is too long to publish, the office shall publish the rule analysis and shall publish the rule by
127     reference to a copy on file with the office.
128          (5) [Prior to] Before filing a rule with the office, the [department head shall consider
129     and comment on] agency shall conduct a thorough analysis, consistent with the criteria
130     established by the Governor's Office of Management and Budget, of the fiscal impact a rule
131     may have on businesses[.], which criteria may include:
132          (a) the type of industries that will be impacted by the rule, and for each identified
133     industry, an estimate of the total number of businesses within the industry, and an estimate of
134     the number of those businesses that are small businesses;
135          (b) the individual fiscal impact that would incur to a typical business for a one-year
136     period;
137          (c) the aggregated total fiscal impact that would incur to all businesses within the state
138     for a one-year period;
139          (d) the total cost that would incur to all impacted entities over a five-year period; and
140          (e) the department head's comments on the analysis.
141          (6) If the agency reasonably expects that a proposed rule will have a measurable
142     negative fiscal impact on small businesses, the agency shall consider, as allowed by federal
143     law, each of the following methods of reducing the impact of the rule on small businesses:
144          (a) establishing less stringent compliance or reporting requirements for small
145     businesses;
146          (b) establishing less stringent schedules or deadlines for compliance or reporting
147     requirements for small businesses;
148          (c) consolidating or simplifying compliance or reporting requirements for small
149     businesses;
150          (d) establishing performance standards for small businesses to replace design or
151     operational standards required in the proposed rule; and
152          (e) exempting small businesses from all or any part of the requirements contained in
153     the proposed rule.
154          (7) If during the public comment period an agency receives comment that the proposed
155     rule will cost small business more than one day's annual average gross receipts, and the agency
156     had not previously performed the analysis in Subsection (6), the agency shall perform the
157     analysis described in Subsection (6).
158          (8) The rule analysis shall contain:
159          (a) a summary of the rule or change;
160          (b) the purpose of the rule or reason for the change;
161          (c) the statutory authority or federal requirement for the rule;
162          (d) the anticipated cost or savings to:
163          (i) the state budget;
164          (ii) local governments;
165          (iii) small businesses; and
166          (iv) persons other than small businesses, businesses, or local governmental entities;
167          (e) the compliance cost for affected persons;
168          (f) how interested persons may review the full text of the rule;
169          (g) how interested persons may present their views on the rule;
170          (h) the time and place of any scheduled public hearing;
171          (i) the name and telephone number of an agency employee who may be contacted
172     about the rule;
173          (j) the name of the agency head or designee who authorized the rule;
174          (k) the date on which the rule may become effective following the public comment
175     period; [and]
176          (l) the agency's analysis on the fiscal impact of the rule as required under Subsection
177     (5);
178          [(l)] (m) any additional comments [by] the department head [on] may choose to submit
179     regarding the fiscal impact the rule may have on businesses[.]; and
180          (n) if applicable, a summary of the agency's efforts to comply with the requirements of
181     Subsection (6).
182          (9) (a) For a rule being repealed and reenacted, the rule analysis shall contain a
183     summary that generally includes the following:
184          (i) a summary of substantive provisions in the repealed rule which are eliminated from
185     the enacted rule; and
186          (ii) a summary of new substantive provisions appearing only in the enacted rule.
187          (b) The summary required under this Subsection (9) is to aid in review and may not be
188     used to contest any rule on the ground of noncompliance with the procedural requirements of
189     this chapter.
190          (10) A copy of the rule analysis shall be mailed to all persons who have made timely
191     request of the agency for advance notice of its rulemaking proceedings and to any other person
192     who, by statutory or federal mandate or in the judgment of the agency, should also receive
193     notice.
194          (11) (a) Following the publication date, the agency shall allow at least 30 days for
195     public comment on the rule.
196          (b) The agency shall review and evaluate all public comments submitted in writing
197     within the time period under Subsection (11)(a) or presented at public hearings conducted by
198     the agency within the time period under Subsection (11)(a).
199          (12) (a) Except as provided in Sections 63G-3-303 and 63G-3-304, a proposed rule
200     becomes effective on any date specified by the agency that is no fewer than seven calendar days
201     after the close of the public comment period under Subsection (11), nor more than 120 days
202     after the publication date.
203          (b) The agency shall provide notice of the rule's effective date to the office in the form
204     required by the department.
205          (c) The notice of effective date may not provide for an effective date prior to the date it
206     is received by the office.
207          (d) The office shall publish notice of the effective date of the rule in the next issue of
208     the bulletin.
209          (e) A proposed rule lapses if a notice of effective date or a change to a proposed rule is
210     not filed with the office within 120 days of publication.
211          (13) (a) As used in this Subsection (13), "initiate rulemaking proceedings" means the
212     filing, for the purposes of publication in accordance with Subsection (4), of an agency's
213     proposed rule that is required by state statute.
214          (b) A state agency shall initiate rulemaking proceedings no later than 180 days after the
215     effective date of the statutory provision that specifically requires the rulemaking, except under
216     Subsection (13)(c).
217          (c) When a statute is enacted that requires agency rulemaking and the affected agency
218     already has rules in place that meet the statutory requirement, the agency shall submit the rules
219     to the Administrative Rules Review Committee for review within 60 days after the statute
220     requiring the rulemaking takes effect.
221          (d) If a state agency does not initiate rulemaking proceedings in accordance with the
222     time requirements in Subsection (13)(b), the state agency shall appear before the legislative
223     Administrative Rules Review Committee and provide the reasons for the delay.