Commerce, Administration

Section R151-46b-5

General Provisions

Notice of Proposed Rule

(Amendment)

DAR File No.: 33149
Filed: 11/16/2009 02:09:32 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Administrative Rules Review Committee requested this agency to evaluate the need of the phrase "liberally construed" in our adjudicative proceedings provisions. A determination has been made that the phrase can be removed and replaced with different terminology.

Summary of the rule or change:

This filing removes the phrase "liberally construed" from the general provisions for agency adjudicative proceedings. Instead, the rule indicates that the agency intends to secure the just, speedy, and economical determination of all issues presented to the agency.

State statutory or constitutional authorization for this rule:

• Subsection 63G-4-102(6)
• Section 13-1-6

Anticipated cost or savings to:

the state budget:

The state budget will not be affected by the change of terminology in expressing this agency's intent as to its adjudicative proceedings.

local governments:

Local government does not administer this agency's adjudicative proceedings, such that local government budget is not affected.

small businesses:

Small businesses will not be affected by the change in terminology in expressing this agency's intent as to its adjudicative proceedings.

persons other than small businesses, businesses, or local governmental entities:

No persons will be affected by the change in terminology in expressing this agency's intent as to its adjudicative proceedings.

Compliance costs for affected persons:

No persons will be affected by the change in terminology in expressing this agency's intent as to its adjudicative proceedings.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Administrative Rules Review Committee requested this agency to evaluate the need of the phrase "liberally construed" in our adjudicative proceedings provisions. A determination has been made that the phrase can be removed and replaced with different terminology. No fiscal impact to businesses is anticipated from the use of such replacement terminology.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Administration
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Masuda Medcalf at the above address, by phone at 801-530-7663, by FAX at 801-530-6446, or by Internet E-mail at mmedcalf@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/31/2009

This rule may become effective on:

01/07/2010

Authorized by:

Francine Giani, Executive Director

R151. Commerce, Administration.

R151-46b. Department of Commerce Administrative Procedures Act Rules.

R151-46b-5. General Provisions.

(1) Purpose[Liberal Construction].

These rules are intended[shall be liberally construed] to secure the just, speedy, and economical determination of all issues presented in adjudicative proceedings before the department.

(2) Deviation from Rules.

The presiding officer may permit or require a deviation from these rules upon a determination that compliance therewith is impractical or unnecessary.

(3) Utah Rules of Civil Procedure.

The Utah Rules of Civil Procedure and case law thereunder may be looked to as persuasive authority upon these rules, but shall not, except as otherwise provided by Title 63G, Chapter 4, Administrative Procedures Act, or by these rules, be considered controlling authority.

(4) Computation of Time.

(a) Periods of time prescribed or allowed by these rules, by any applicable statute or by an order of a presiding officer shall be computed as to exclude the first day of the act, event, or default from which the designated period of time begins to run. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. Whenever a party has the right or is required to do some act or take some action within a prescribed period after the service of a notice or other paper upon him and service is by mail, three days shall be added to the prescribed period. No additional time is provided if service is accomplished by facsimile or other electronic means.

(b) Subject to the provisions of Subsections R151-46b -5(5)(b) and -9(9)(c)(ii), for good cause shown, the presiding officer may extend a time period under these rules on his own motion or upon written application from either party.

(5) Extension of Time; Continuance of Hearing.

(a) When a statute, or these rules, authorizes the presiding officer to extend a time period or grant a continuance of a hearing, the presiding officer shall consider the following factors, and such other factors as may be appropriate, in determining whether to grant such extension or continuance:

(i) whether there is good cause for granting the extension or continuance;

(ii) the number of extensions or continuances the requesting party has already received;

(iii) whether the extension or continuance will work a significant hardship upon the other party;

(iv) whether the extension or continuance will be prejudicial to the health, safety or welfare of the public; and

(v) whether the other party objects to the extension or continuance.

(b)(i) Notwithstanding the provisions of Subsection R151-46b-5(2) or any other provision of these rules, and except as provided in Subsection (5)(b)(ii), an extension of a time period or a continuance of a hearing may not result in the hearing being concluded more than 240 calendar days after the day on which:

(A) the notice of agency action was issued; or

(B) the initial decision with respect to a request for agency action was issued.

(ii) Notwithstanding the provisions of Subsection (5)(b)(i), an extension of a time period or a continuance may exceed the time restriction outlined in Subsection (5)(b)(i) only if:

(A)(I) a party provides an affidavit or certificate signed by a licensed physician verifying that an illness of the party, the party's counsel, or a necessary witness precludes the presence of the party, the party's counsel, or a necessary witness at the hearing;

(II) counsel for a party withdraws shortly before the final hearing, unless the presiding officer finds that the withdrawal was for the purpose of delaying the hearing; or

(III) a parallel criminal proceedings exists based on facts at issue in the administrative proceeding; and

(B) the presiding officer finds that injustice would result from failing to grant the extension or continuance.

(iii) The failure of the presiding officer to comply with the requirements of this Subsection

(5)(b) is not a basis for dismissal of the matter.

(6) Conflict.

In the event of a conflict between these rules and any statutory provision, the statute shall govern.

(7) Necessity of Compliance with GRAMA.

To the extent that the Utah Government Records Access and Management Act ("GRAMA") would impose a restriction on the ability of a party to disclose any record which would otherwise have to be disclosed under these rules, such record shall not be disclosed except upon compliance with the requirements of that Act.

 

KEY: administrative procedures, adjudicative proceedings, government hearings

Date of Enactment or Last Substantive Amendment: [September 22, 2008]2010

Notice of Continuation: May 3, 2006

Authorizing, and Implemented or Interpreted Law: 13-1-6; 63G-4-102(6)