DAR File No. 43148

Commerce, Administration

Rule R151-4

Department of Commerce Administrative Procedures Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 43148
Filed: 08/13/2018 09:31:45 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change simplifies procedures for the filing and service of pleadings, updates the disclosure required for an expert witness' written report consistent with the Utah Rules of Civil Procedure (URCP) Rule 26(a)(4)(B), updates the requirement for electronic testimony in formal hearings consistent with the URCP, clarifies that the 30-day deadline for filing a request for agency review is a jurisdictional deadline that may be extended only for good cause, and updates references to certain provisions relating to decisions from the Division of Corporations and Commercial Code.

Summary of the rule or change:

Section R151-4-109 is amended to clearly state that the elements in Subsection R151-4-109(1) do not apply to a request for agency review. Changes are made to Section R151-4-401 to clarify and simplify the administrative filing process. This rule is amended to: 1) remove the requirement to file pleadings with both the agency and any administrative law judge (ALJ), instead requiring only a filing with the agency; 2) treat filings by fax and email the same way, and 3) delete previous subpart (D) that appears redundant. With the removal of the requirement to file with any ALJ. Section R151-4-402 is amended to clarify that service must also be made on any ALJ assigned to the case (since the requirement to file a document with any ALJ has been deleted). For clarity, Section R151-4-504 spells out the expert requirement rather than making a reference to URCP 26. Section R151-4-707 is updated to essentially mirror the URCP in stating that for good cause and with appropriate safeguards, the presiding officer has discretion to permit electronic testimony by contemporaneous transmission from a different location in formal proceedings. This rule with respect to informal proceedings is amended to clarify that electronic testimony is acceptable (removing the word "generally") and is amended to reflect the ability of any ALJ to implement appropriate safeguards on electronic testimony. Section R151-4-901 corrects outdated references and note that the 30-day deadline for filing an agency review request may be extended only for good cause. Technical changes are made to Section R151-4-903 to make the language consistent with Section R151-4-907.

Statutory or constitutional authorization for this rule:

• Section 13-1-6

Anticipated cost or savings to:

the state budget:

These proposed amendments clarify, simplify, and update procedures for adjudicative proceedings conducted under the Department of Commerce (Department) Administrative Procedures Act. There may be some monetary savings to the Department resulting from potentially reduced agency staff time and resources that will need to be dedicated to these adjudicative proceedings. However, the full impact of any savings is inestimable, both because the savings will occur only when and as cases are filed, and because the amount of any savings will vary from case-to-case depending on the parties involved and the nature and complexity of the proceedings. No other fiscal impact to the state is expected, beyond a minimal cost to the Department of approximately $75 to print and distribute this rule once these proposed amendments are made effective.

local governments:

Because local governments are not typically involved in the procedures being updated by these amendments, these proposed amendments are not expected to have any impact on local governments' revenues or expenditures.

small businesses:

Because these proposed amendments clarify, simplify, and update procedures for adjudicative proceedings conducted under the Department Administrative Procedures Act, there may be some monetary savings to small businesses who become involved in these agency proceedings. In particular, the clarified and simplified processes for filing and service, and the increased ability to provide electronic testimony by contemporaneous transmission, could result in a reduction of the costs to small businesses associated with their participation in these proceedings. For a complete listing of NAICS Codes of the types of small businesses who might become involved in Department adjudicative proceedings, please contact the Department. However, some electronic testimony requests are already granted before hearings in the Department. Even assuming that the amount of electronic testimony increases, the full impact to these small businesses cannot be estimated because these estimated savings will occur only when small businesses actually become involved in adjudicative proceedings and are able to take advantage of these new clarified and simplified processes. It cannot be estimated how much any potentially involved small businesses will save because the amount of any savings will vary widely from case-to-case depending on the location and nature of the adjudicative proceedings in which they are involved. For example, savings to small businesses from being able to provide electronic testimony will be based on direct savings in cost (transportation, lodging, food), and indirect savings (reduced time away from work), with the aggregate savings depending on how many participants (employees, managers, members, officers, attorneys) would have otherwise been required to appear in person. This also assumes that the request would not have already been accepted under the old rule. These savings may also be offset by the cost of court reporters and technology used to facilitate an electronic appearance, for which there is no data.

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

Because these proposed amendments clarify, simplify, and update procedures for adjudicative proceedings conducted under the Department Administrative Procedures Act, there may be some monetary savings to persons other than small businesses, businesses, or local government entities who become involved in these agency proceedings. In particular, the clarified and simplified processes for filing and service, and the increased ability to provide electronic testimony by contemporaneous transmission, could result in a reduction of the costs to individuals and other persons associated with their participation in these proceedings. However, some electronic testimony requests are already granted before hearings in the Department. Even assuming that the amount of electronic testimony increases, the full impact to these persons cannot be estimated because these estimated savings will occur only when persons actually become involved in adjudicative proceedings and are able to take advantage of these new clarified and simplified processes. It cannot be estimated how much any potentially involved person will save because the amount of any savings will vary widely from case-to-case depending on the location and nature of the adjudicative proceedings in which they are involved. For example, savings to persons from being able to provide electronic testimony will be based on direct savings in cost (transportation, lodging, food), and indirect savings (reduced time away from work), with the aggregate savings depending on how many participants would have otherwise been required to appear in person. This also assumes that the request would not have already been accepted under the old rule. These savings may also be offset by the cost of court reporters and technology used to facilitate an electronic appearance, for which there is no data.

Compliance costs for affected persons:

These proposed amendments are not expected to impose any compliance costs for affected persons because no additional requirements for affected persons are established by this rule filing beyond those already in place.

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

This filing updates, simplifies, and clarifies the current administrative procedure rule. No fiscal impact to businesses is anticipated.

Francine A. Giani, Executive Director

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

Commerce
Administration
HEBER M WELLS BLDG
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:

10/01/2018

This rule may become effective on:

10/18/2018

Authorized by:

Francine Giani, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2019	FY 2020	FY 2021
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

Similar to small businesses, these proposed amendments may result in some monetary savings to non-small businesses who become involved in Department adjudicative proceedings, because the amendments clarify, simplify, and update procedures conducted under the Department of Commerce Administrative Procedures Act. In particular, the clarified and simplified processes for filing and service, and increased ability to provide electronic testimony by contemporaneous transmission, could substantially reduce the costs to non-small businesses participating in these proceedings. (For a complete listing of NAICS Codes of the types of non-small businesses who might become involved in Department adjudicative proceedings, please contact the Department.) However, the full impact to non-small businesses cannot be estimated because these estimated savings will occur only when these non-small businesses are able to take advantage of these new clarified and simplified processes. The data necessary to determine how many of the parties who will appear before the Department will be non-small businesses is unavailable, both because those numbers are not tracked, and because these parties typically appear only in cases of unforeseeable violations of law. Further, it cannot be estimated how much any non-small businesses involved in such proceedings will save, because the amount of any savings will vary substantially from case to case depending on the location and nature of the parties involved and the type and complexity of the adjudicative proceedings in which they are involved.

 

The head of the Department of Commerce, Francine A. Giani, has reviewed and approved this fiscal analysis.

 

 

R151. Commerce, Administration.

R151-4. Department of Commerce Administrative Procedures Act Rule.

R151-4-109. Extension of Time and Continuance of Hearing.

(1) When ruling on a motion or request for extension of time or continuance of a hearing, the presiding officer shall consider:

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

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

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

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

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

(2)(a) Except as provided in R151-4-109(2)(b), 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:

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

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

(b) Notwithstanding R151-4-109(2)(a), an extension of a time period or a continuance may exceed the time restriction in R151-4-109(2)(a) only if:

(i)(A) 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;

(B) counsel for a party withdraws shortly before the final hearing, unless the presiding officer finds the withdrawal was for the purpose of delaying the hearing, in which case the hearing will go forward with or without counsel;

(C) a parallel criminal proceeding or investigation exists based on facts at issue in the administrative proceeding, in which case the continuance must address the expiration of the continuance upon the conclusion of the criminal proceeding; or

(D) the board or commission designated to act as the fact-finder at hearing is unavailable to meet on a date that:

(I) allows the parties a reasonable period of time for discovery, motion practice, or hearing preparation; and

(II) falls within the 240-day deadline for resolution; and

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

(c)(i) If the presiding officer considers that extenuating circumstances not contemplated in R151-4-109(2)(b) justify a continuance beyond the 240-day deadline, the presiding officer shall file a written request for continuance with the Executive Director.

(ii) A party may not directly petition the Executive Director for a continuance.

(iii) The Executive Director's decision on the presiding officer's request for continuance shall be issued on an interlocutory basis, not subject to a request for reconsideration or judicial review until after a final order on the merits is issued.

(d) The failure to conclude a hearing within the required time period is not a basis for dismissal.

(3) The presiding officer may not grant an extension of time or continuance that is not authorized by statute or rule.

(4) The factors in Subsection (1) do not apply to a request for agency review made pursuant to Subsection R151-4-901(1)(a). A request for an extension to file a request for agency review is governed by Subsection R151-4-901(1)(c).

 

R151-4-401. Filing.

(1)(a) Pleadings shall be filed with[:

(i) ] the department or division in which the adjudicative proceeding is being conducted, which maintains the official file[; and

(ii) any administrative law judge who is conducting all or part of the adjudicative proceeding].

(b) The filing of discovery documents is governed by R151-4-512.

(2)(a) A filing may be accomplished by:

(i) hand delivery of a paper copy, pursuant to Subsection (2)(b)(i);

(ii) first class or certified mail, postage pre-paid, of a paper copy, pursuant to Subsection (2)(b)(i);

(iii) fax, pursuant to Subsection (2)(b)(ii); or

(iv) attachment to electronic mail, pursuant to Subsection (2)(b)(iii).

(b)(i) A filing by hand delivery or first class or certified mail is complete when it is received and date stamped by the department or division, as applicable[, or the administrative law judge who is assigned to act as the presiding officer in the case. If delivery to the department or division occurs on a different day than does delivery to the administrative law judge, the earlier date stamp shall constitute the date of filing].

(ii) A filing by fax or electronic mail is complete upon transmission , if:

(A) compliant with Subsection (1);

(B) completed and received during the department's operating hours, 8 a.m. to 5 p.m. Mountain Time (Standard or Daylight Savings, as applicable), on days other than Saturdays, Sundays, or state or federal holidays; [and]

(C) the recipient receives all pages of the document transmitted[.]; and,

(D) the party filing the document:

[(iii) A filing by attachment to electronic mail is complete upon transmission if:

(A) the requirements of Subsection (2)(b)(ii) are met; and

(B) the party filing the document:

](I) also mails the document to the department or division [and the administrative law judge ]the same day, as evidenced by a postmark; or

(II) prior to any applicable filing deadline, is expressly excused by the presiding officer from mailing the document.

( c[d]) The burden is on the party filing the document to ensure that a filing is properly completed.

[(e) All filings made on agency review shall be provided in paper copy.]

 

R151-4-402. Service.

(1)(a) Pleadings filed by the parties shall be concurrently served on all parties and any administrative law judge who is assigned in the case.[and d] Documents issued by the presiding officer shall be concurrently served on all parties.

(b) The party who files a pleading is responsible for service of the pleading.

(c) The presiding officer who issues a document is responsible for service of the document.

(2)(a) Service may be made:

(i) on a person upon whom a summons may be served pursuant to the Utah Rules of Civil Procedure; and

(ii) personally or on the agent of the person being served.

(b) If a party is represented by an attorney, service shall be made on the attorney.

(3)(a) Service may be accomplished by hand delivery of a paper copy, by mail of a paper copy to the last known address of the intended recipient, or by attachment to electronic mail.

(b) Service by hand delivery is complete upon delivery to:

(i) the person who is required to be served;

(ii) any individual who is employed by, and physically present at, the business office of the person who is required to be served; or

(iii) a mailbox or dropbox that is:

(A) assigned to the person who is required to be served; and

(B) physically located at the person's place of business.

(c) Service by mail is complete upon mailing, as evidenced by a postmark.

(d) Service by attachment to electronic mail is complete on transmission if transmission is completed during normal business hours, 8 a.m. to 5 p.m. on days other than Saturdays, Sundays, and state and federal holidays, at the place receiving the service; otherwise, service is complete on the next business day.

(4) There shall appear on all documents required to be served a certificate of service in substantially the following form:

 

TABLE II

  CERTIFICATE OF SERVICE

     I certify that I have this day served the

foregoing document on the parties of record in this

proceeding set forth below (by delivering a copy thereof

in person) (by mailing a copy thereof, properly addressed

by first class mail with postage prepaid, to) (by

electronic means to):



(Name(s) of parties of record)

(Address(es))

Dated this (day) day of (month), (year).



(Signature)

(Name and Title)

 

 

R151-4-504. Disclosures Otherwise Required.

(1)(a) A party shall:

(i) disclose in writing the name, address and telephone number of any person who might be called as an expert witness at the hearing; and

(ii) provide a written report signed by the expert that contains a complete statement of all opinions the expert will offer at the hearing and the basis and reasons for them[pursuant to the requirements for disclosure of expert testimony of Rule 26 of the Utah Rules of Civil Procedure]. Such an expert may not testify in a party's case-in-chief concerning any matter not fairly disclosed in the report. The party offering the expert shall pay the costs for the report.

(b) Unless otherwise stipulated in writing by the parties or ordered in writing by the presiding officer, the disclosures required by R151-4-504(1) shall be made:

(i) within 30 days after the deadline for completion of discovery; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under R151-4-504(1)(a), within 60 days after the disclosure made by the other party.

(c) If either party fails to file its disclosure within the time frames in R151-4-504(1), the presiding officer:

(i) shall exclude the expert testimony from the proceeding; and

(ii) may not continue the hearing to allow additional time for the disclosures.

(2)(a) In addition to the disclosures required by R151-4-504(1), a party shall disclose information regarding evidence the party may present at hearing other than solely for impeachment purposes pursuant to the pretrial disclosures provisions of Rule 26 of the Utah Rules of Civil Procedure.

(b)(i) The disclosures required by R151-4-504(2) shall be made at least 45 days before the hearing.

(ii) Within 14 days after service of the disclosures a party may serve and file an objection to the:

(A) use of a deposition designated by another party; and

(B) admissibility of materials identified under R151-4-504(2)(a).

(iii) An objection not timely made is waived.

 

R151-4-707. Electronic Testimony.

(1) As used in this section (R151-4-707), electronic testimony [includes]means testimony by contemporaneous transmission from a different location including by telephone , or by other audio or video conferencing technology.

(2) For good cause and with appropriate safeguards, the presiding officer may permit electronic testimony in hearings in administrative proceedings.[(a) Electronic testimony is permissible in a formal proceeding only:

(i) on the consent of all parties; or

(ii) if warranted by exigent circumstances.

(b) Expenses to produce in-person testimony do not constitute an exigent circumstance in a formal proceeding. (c) E]

(3) With appropriate safeguards, electronic testimony [generally ]is permissible in an informal proceeding on the request of a party.

[(3)(a) When electronic testimony is to be presented, the presiding officer shall require identification of the witness.

(b) The presiding officer shall provide safeguards to:

(ii) assure the witness does not refer to documents improperly; and

(iii) reduce the possibility the witness may be coached or influenced during the testimony.]

 

R151-4-901. Availability of Agency Review and Reconsideration.

(1)(a) Except as otherwise provided in Subsection 63G-4-209(3)(c), an aggrieved party may obtain agency review of a final order by filing a request with the executive director within 30 calendar days after the issuance of the order.

(b) This 30-day deadline is jurisdictional. The three-day mailing rule in Section 151-4-107(3) does not apply and does not extend the jurisdictional deadline.

(c) Pursuant to Subsection 63G-4-102(9), the Executive Director may extend the deadline only for good cause shown. For purposes of this section R151-4-901, good cause to justify an extension means special circumstances beyond the control of the person requesting agency review that prevents a timely filing of the request.

(2)(a) Agency review is not available for an order or decision entered by:

(i) the Utah Motor Vehicle Franchise Advisory Board; or

(ii) the Utah Powersport Vehicle Franchise Advisory Board.

(b) Agency review is not available for an order or decision entered by the Division of Occupational and Professional Licensing for:

(i) Prelitigation proceedings under Title 78B, Chapter 3, the Utah Health Care Malpractice Act;

(ii) a request for modification of a disciplinary order; or

(iii) a request under Section 58-1-404(4) for entry into the Diversion Program.

(c) Agency review is not available for an order or decision entered by the Division of Corporations and Commercial Code for:

(i) refusal to file a document under the Utah Revised Business Corporations Act pursuant to Section 16-10a-126;

(ii) revocation of a foreign corporation's authority to transact business pursuant to Section 16-10a-1532;

(iii) refusal to file a document under the Utah Revised Limited Liability Company Act pursuant to Section 48-3a-209[48-2c-211]; or

(iv) denial of reinstatement under the Uniform Limited Cooperative Association Act[revocation of a foreign limited liability company's authority to transact business] pursuant to Section 16-16-1213[48-2c-1614].

(d)(i) A party may request agency reconsideration pursuant to Section 63G-4-302 for an order or decision exempt from agency review under R151-4-901(2)(a), (2)(b)(ii), and (2)(c).

(ii) Pursuant to Subsections 58-1-404(4)(d) and 78B-3-416(1)(c), agency reconsideration is not available for an order or decision exempt from agency review under R151-4-901(2)(b)(i) and (2)(b)(iii).

 

R151-4-903. Stay Pending Agency Review.

(1)[(a)] With a timely filing of a request for agency review of an order, the party seeking review may file a motion for a stay of the order pending the completion of agency review. [request that the effective date of the order subject to review be stayed pending the completion of review.]

(b) If a motion to stay is not timely filed[requested] and subsequently granted, the order subject to review shall remain[take] in effect according to its terms.

(2)(a) The division that issued the order subject to review may oppose a motion[request] for a stay in writing within ten days from the date the stay is requested.

(b) Failure to oppose a timely request for a stay shall result in an order granting the stay unless the department determines that a stay would not be in the best interest of the public.

(c) If a division opposes a motion for a stay, the department may permit a final response by the party requesting the stay.

(d) The department may enter an interim order granting a stay pending a decision on the motion for a stay.

(3)(a) In determining whether to grant a request for a stay, the department shall review the division's findings of fact, conclusions of law and order to determine whether granting a stay would, or might reasonably be expected to, pose a significant threat to the public health, safety and welfare.

(b) The department may issue:

(i) an order granting the motion for a stay;

(ii) a conditional stay imposing terms, conditions or restrictions on a party pending agency review;

(iii) a partial stay; or

(iv) an order denying the motion for a stay.

 

KEY: administrative procedures, adjudicative proceedings, government hearings

Date of Enactment or Last Substantive Amendment: [December 28, 2015]2018

Notice of Continuation: March 15, 2016

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