DAR File No. 44111

This rule was published in the October 15, 2019, issue (Vol. 2019, No. 20) of the Utah State Bulletin.


Natural Resources, Oil, Gas and Mining; Oil and Gas

Rule R649-2

General Rules

Notice of Proposed Rule

(Amendment)

DAR File No.: 44111
Filed: 10/01/2019 09:00:01 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to conserve the natural resources of oil and gas in the state, to protect human health and the environment, to prevent waste, to protect correlative rights of all owners and to realize the greatest ultimate recovery of oil and gas. These rule changes will amend five sections as a result of S.B. 191, passed during the 2017 General Session, and H.B. 419, passed during the 2018 General Session.

Summary of the rule or change:

Rule R649-2 establishes requirements for the permitting, reporting, and inspecting of oil and gas drilling operations in Utah. These rule changes include consent to participate in a well, revision of existing force pooling hearing, notice to unlocatable and unidentified owners, imposition of statutory risk compensation award, and application of a compulsory pooling order to subsequently drilled wells in a drilling unit.

Statutory or constitutional authorization for this rule:

  • Section 40-6-1 et seq.

Anticipated cost or savings to:

the state budget:

The Oil and Gas Program, as well as the Board of Oil, Gas and Mining (Board), is expected to encounter a small on-going savings in staff time through a reduction in compulsory pooling hearings heard by the Board. A total savings cannot be estimated as there is no way of knowing the number of hearings being reduced by these rule amendments.

local governments:

No costs or savings are anticipated for local governments, since this rules impacts oil and gas companies, the Division of Oil, Gas and Mining (Division) and the Board.

small businesses:

It is anticipated that small businesses who operate oil and gas operations will see a benefit as there is an anticipated increase in horizontal drilling and compulsory pooling in the coming years, and these rule changes will decrease the number of hearings. A total savings cannot be estimated as there is no way of knowing which companies would have filed a hearing with the Board and the other costs associated with Board hearings (attorney fees, travel, etc.).

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

Persons other than small businesses, businesses, or local government entities would not be impacted by these rule changes since they pertain to companies who conduct oil and gas operations in Utah.

Compliance costs for affected persons:

There will not be added compliance costs for companies who are oil and gas operators.

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

Businesses will not encounter a negative fiscal impact from these rule amendments. Oil and gas operators should have a cost savings in pooling hearings as these rule amendments clarify the compulsory pooling process.

Brian C. Steed, Executive Director

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

Natural Resources
Oil, Gas and Mining; Oil and GasRoom 1210
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

  • Natasha Ballif at the above address, by phone at 801-538-5336, by FAX at , or by Internet E-mail at natashaballif@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:

12/11/2019

Interested persons may attend a public hearing regarding this rule:

  • 12/11/2019 10:00 AM, Utah DNR, 1594 W. North Temple, Salt Lake City, UT
  • 10/23/2019 10:00 AM, Price Field Office, 345 N. Carbonville Road, Price, UT

This rule may become effective on:

12/18/2019

Authorized by:

John Baza, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2020

FY 2021

FY 2022

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

 

Appendix 2: Regulatory Impact to Non - Small Businesses

There are four non-small businesses and 303 small businesses in the oil and gas operating industry (NAICS 213112) in Utah. These businesses will experience a fiscal savings associated with decreased need for hearings, which will be a decrease in operating price. The full impact to these small and non-small businesses cannot be estimated because there is no way of knowing which businesses will participate in compulsory pooling matters and which will see a reduction in Board hearings.

 

The head of the Division of Oil, Gas, and Mining, John Baza, has reviewed and approved this fiscal analysis.

 

 

R649. Natural Resources; Oil, Gas and Mining; Oil and Gas.

R649-2. General Rules.

R649-2-1. Scope of Rules.

1. The following general rules adopted by the board pursuant to Chapter 6 of Title 40 shall apply to all lands in the state in order to conserve the natural resources of oil and gas in the state, to protect human health and the environment, to prevent waste, to protect the correlative rights of all owners and to realize the greatest ultimate recovery of oil and gas.

2. Special rules and orders have been and will be issued by the board when required and shall prevail as against the general rules and orders of the board if in conflict therewith.

3. Exceptions to the general rules may also be granted by the director or authorized agent for good cause shown and shall prevail as against the general rules.

4. No exceptions granted by the board, director, or authorized agent to the rules applicable to the Underground Injection Control Program will be effective without the consent of the federal Environmental Protection Agency.

 

R649-2-2. Application of Rules to Lands Owned or Controlled By the United States.

These general rules shall apply to all lands in the state including lands of the United States and lands subject to the jurisdiction of the United States to the extent lawfully subject to the state's power.

 

R649-2-3. Application of Rules to Unit Agreements.

1. The board may suspend the application of the general rules or orders or any part thereof, with regard to any unit agreement approved by a duly authorized officer of the appropriate federal agency, so long as the conservation of oil or gas and the prevention of waste is accomplished thereby.

2. Such suspension shall not relieve any operator from making such reports as are otherwise required by the general rules or orders, or as may reasonably be requested by the board or the division in order to keep the board and the division fully informed as to operations under such unit agreements.

 

R649-2-4. Designation of Agent or Operator.

1. A designation of agent or operator shall be submitted to the division prior to the commencement of operations.

2. A designation of agent or operator will, for purposes of the general rules and orders, be accepted as evidence of authority of agent to fulfill the obligations of the owner, to sign any required documents or reports on behalf of the owner, and to receive all authorized orders or notices given by the board or the division.

3. All changes of address and any termination of the designated agent's or operator's authority shall be promptly reported in writing to the division, and in the latter case a designation of a new agent or operator shall be promptly made.

 

R649-2-5. Right to Inspect.

1. The director or authorized agent shall have the right at all reasonable times to go upon and inspect any oil or gas properties and wells for the purpose of making any investigations or tests reasonably necessary to ensure compliance with the provisions of the statutes, the general rules and orders of the board or any special field rules and orders. The director or authorized agent shall report any observed violation to the board.

2. The documentation of off lease transportation of crude oil required by R649-2-6, Access to Records, shall be carried in the motor vehicle during transportation and shall be available for examination and inspection by the director or an authorized agent upon request.

 

R649-2-6. Access to Records.

1. Any person who produces, operates, sells, purchases, acquires, stores, transports, refines, or processes oil or gas or who injects fluids for cycling, pressure maintenance, secondary or enhanced recovery, or disposal of salt water or oil field waste within the state, shall make and keep appropriate books and records covering [his]their operations in the state from which [he]they shall be able to make and substantiate all reports required by the board or the division.

1.1. Such books and records, together with copies of all reports and notices submitted to the board or the division shall be kept on file and available for inspection by the director or an authorized agent at all reasonable times for a period of at least six years.

1.2. The director or the authorized agent shall also have access to all pertinent well records wherever located.

2. Each owner or operator shall permit the director or authorized agent at [his]their sole risk and expense, in the absence of negligence on the part of the owner or operator, to come upon any lease, property or well operated or controlled by [him]them; to inspect the records pertaining to and the manner of operation of such property or well; and to have access at all reasonable times to any and all records pertaining to such well. All information so obtained by the director or authorized agent shall be kept confidential and shall be reported only to the division or its authorized agent, unless the owner or operator gives written permission to the director to release such information.

3. All off lease transportation of oil by motor vehicle shall be accompanied by a run ticket or equivalent document. The documentation shall identify the name and address of the transporter, the name of the operator, the lease or facility from which the oil was taken, the date of removal, the API gravity of the oil, the calculated percentage of BS and W, the volume of oil or the opening and closing tank gauges or meter readings, and the destination of the oil.

 

R649-2-7. Naming of Oil and Gas Fields or Pools.

1. The division shall name oil and gas fields or pools within the state in cooperation with a Fields Names Advisory Committee and with due regard and consideration for any recommendation from the owners or operators of such fields or pools. The Field Names Advisory Committee shall be composed of a representative of the United States Bureau of Land Management and representatives of appropriate state agencies and the oil and gas industry.

 

R649-2-8. Measurement of Production.

1. The volume of oil production shall be computed in barrels of clean oil, on the basis of acceptable meter measurements, tank measurements, or with such greater accuracy as may be required by the division. Computations of the volume of oil production shall be subject to the following corrections:

1.1. The gross volume of oil shall be corrected to exclude the entire volume of impurities not constituting a natural component part of the oil.

1.2. The observed volume of oil after correction for impurities shall be further corrected to the standard volume at 60 degrees Fahrenheit, in accordance with Table 6A of the API/ASTM D-1250, Chapter 11.1, Manual of Petroleum Measurement (1980), or any revisions or supplements, or any alternative publication or tables approved by the division.

1.3. The observed gravity of oil shall be corrected to the standard API gravity at 60 degrees Fahrenheit in accordance with Table 5A of API/ASTM, D-1250, Chapter 11.1, Manual of Petroleum Measurement (1980), or any revisions or supplements, or any alternative publication or tables approved by the division.

2. All gas shall be measured by an orifice type meter unless otherwise authorized by the division.

2.1. In computing the volumes of all gas produced, sold, or injected, the standard pressure base shall be 14.73 pounds per square inch absolute (psia), and the standard temperature base shall be 60 degrees Fahrenheit.

2.2. All measurements of gas shall be adjusted by computation to these standards, regardless of the pressure and temperature at which the gas was actually measured, unless otherwise authorized by the division.

 

R649-2-8a. Consenting to Participate in a Well.

1. Except as provided in Subsection (2.1) below, an owner shall be determined by the board to be a "Nonconsenting owner" as defined in Utah Code Section 40-6-2(11) if, within 30 days from the date the Notice of Opportunity to Participate is received, the owner has failed to:

1.1. Execute and deliver to the operator an executed AFE for the well; and

1.2. Execute and deliver to the operator a JOA to govern the drilling and operation of the well and applicable drilling unit with the operator, and subject the owner to the risk compensation award under the provisions of Utah Code Section 40-6-6.5 as may be determined by the board.

2. If, within 30 days from the date the Notice of Opportunity to Participate is received or such later date as provided for by the Notice of Opportunity to Participate, or by separate written agreement, an owner has delivered to the operator:

2.0.1. An executed AFE,

2.0.2. Payment of its proportionate share of the dry hole costs represented in the applicable AFE, and

2.0.3. Written objections, addressing the specific provisions of the operator's proposed JOA to which the owner in good faith objects, the reasoning for each objection, and modifications/alternative provisions the owner proposes in lieu thereof, the owner shall be deemed a "Consenting owner" as defined in Utah Code Section 40-6-2(4).

2.0.4. The payment obligations under 2.0.2. are reciprocal. If an owner tenders the full amount of dry hole costs in contesting a JOA, the operator is also obligated to immediately tender its proportionate share of dry hole costs until the JOA is negotiated and executed, or until the terms of the JOA are determined by the board.

2.1 Failure of an owner to comply with the requirements of Subsection (2) shall result in the determination by the board that the owner is a Nonconsenting owner and subject the owner to the risk compensation award under the provisions of Utah Code Section 40-6-6.5 as may be determined by the board and, in such an event, any dry hole costs paid by the owner shall be refunded to the owner.

3. An owner who complies with the requirements of Subsection (2) or an operator who in good faith rejects said owner's proposed modifications/alternate provisions to the JOA, and who has also tendered their proportionate share of dry hole costs, may request that the board determine the terms of the JOA in accordance with the provisions of Utah Code Section 40-6-6.5(2) as follows:

3.1. If the operator has filed a Request for Agency Action for compulsory pooling of owners in the well and associated drilling unit has been filed, either the owner or the operator may move the board to determine the reasonableness of the costs charged and/or the terms of the JOA between the owner and operator as part of that proceeding, and

3.2. If no Request for Agency Action has been filed for the compulsory pooling of owners in the well and associated drilling unit, then either the owner or the operator may file a Request for Agency Action within 60 days of the receipt by the operator of the owner's written objections.

3.3. If neither (3.1) or (3.2) timely occurs, then the actual costs incurred will be deemed by the board as just and reasonable, and the terms of the JOA as proposed by the operator in the Notice of Opportunity to Participate will be deemed by the board to govern as between the operator and the owner in any subsequent hearing before the board.

3.4. If a hearing is held before the board regarding disputed provisions and/or terms of a JOA, the scope of the hearing shall be limited to addressing only the terms at issue within the proposed JOA. Any JOA approved and adopted by the board shall govern as between the operator and the owner. If the board determines the owner's objections to the costs charged are justified, the operator shall apply the amounts over and above those found to be reasonable charges as a credit against the owner's proportionate share of future operational expenses.

3.5 Irrespective of any provisions contained in the proposed and/or approved JOA to the contrary, full payment of the objecting owner's proportionate share of the amount represented in the applicable AFE, less any applicable credits, shall be tendered by the subject well's spud date.

3.6 In the event an owner fails to pay the proportionate share of the amount represented in the applicable AFE, less any applicable credits, by the subject well's spud date, then the owner will be deemed a "Nonconsenting owner" under (2.1) of this Rule and subject the owner to the risk compensation award under the provisions of Utah Code Section 40-6-6.5 as may be determined by the board and, in such an event, any dry hole costs paid by the owner shall be refunded to the owner.

4. An operator who has received payment of the dry hole costs as represented in the AFE from an owner who has complied with the provisions of Subsection (2) shall deposit the proceeds, together with the operator's proportionate share of dry hole costs, in a separate trust account in a federally insured bank or savings and loan institution.

4.1. The deposit shall earn interest at the highest rate being offered by that institution for the amount and term of similar demand deposits.

4.2. The operator may commingle the proceeds only with proceeds received from other similarly situated owners.

4.3. Applicable bank/financial institution fees shall be deducted.

4.4. Payment of principal and accrued interest from the trust account shall be made to the operator if and when operations as set forth in the written Notice of Opportunity to Participate are commenced within 120 days after expiration of the election period provided in Subsection (1).

4.5. If operations as set forth in the written Notice of Opportunity to Participate are not commenced within 120 days after expiration of the election period provided in Subsection (1), then, absent the owner's written agreement to the contrary, the owner's consent and agreement shall be null and void, the operator must return the tendered dry hole cost amount plus accrued interest, but deducting applicable bank/financial institution fees, thereon to the owner within 30 days of the expiration of the 120-day period, and a new written Notice of Opportunity to Participate must be provided if the well is to be re-proposed.

 

R649-2-9. Refusal to Agree.

[1. An owner shall be deemed to have refused to agree to bear his proportionate share of the costs of the drilling and operation of a well under Section 40-6-6.5 if:

1.1. The operator of the proposed well has, in good faith, attempted to reach agreement with such owner for the leasing of the owner's mineral interest or for that owner's voluntary participation in the drilling of the well.

1.2. The owner and the operator have been unable to agree upon terms for the leasing of the owner's interest or for the owner's participation in the drilling of the well. For purposes of Utah Code Sections 40-6-2(4) and -2(11), the consent and agreement required of an owner shall be manifested by the owner agreeing in writing, within thirty (30) days from the date the notice required by Utah Code Section 40-6-2(11) is received, to bear that owner's proportionate share of the costs of drilling, testing, completion, equipping and operation of the well.]

[2. ]If the operator [of the proposed well ]and owner negotiating in good faith fail[shall fail to attempt, in good faith,] to reach agreement [with the owner ]for the leasing of that owner's mineral interest or for voluntary participation by that owner in the proposed well prior to the filing of a Request for Agency Action for [involuntary]compulsory pooling of interests in the drilling unit under Section 40-6-6.5 then, [upon written request and after notice and hearing, ]the duly-noticed hearing on the Request for Agency Action for [involuntary]compulsory pooling may, at the discretion of the board or its designated hearing examiner, be delayed for a period not to exceed 30 days, to allow for continued good faith negotiations between the operator and the owner.

 

R649-2-9a. Notice to Unlocatable and Unidentified Owners.

1. Either an owner who is not identifiable, but may claim ownership by, through, or under the estate of a deceased owner of record, or an owner who is not locatable, may be determined by the board to be a "Nonconsenting owner" as defined by Utah Code Section 40-6-2(11) if:

1.1. The operator, concurrent with the filing of a Request for Agency Action for compulsory pooling, files with the board an ex parte motion for notice by publication in a newspaper of general circulation in the county where the well is located for two (2) consecutive weeks prior to the hearing date, which motion shall be accompanied by a proposed form of such notice to be published, and an affidavit outlining in sufficient detail the operator's reasonable diligent and good faith efforts to identify and locate such owners including at a minimum:

1.1.1. A listing of all such owners; provided, if such owners are unknown, then identifying them as parties not already leased or participating in the well at issue and claiming by, through or under the estate of the deceased owner of record;

1.1.2. The name, address, email address and telephone number of a contact person for the operator to respond to the notice; and

1.1.3. All of the information set forth in Notice of Opportunity to Participate, but, in lieu of an AFE and a JOA, a statement that an AFE for the subject well and a proposed JOA agreement shall be provided by the operator to the owner if a response to the notice is received before the hearing.

1.2. The board finds the operator has exercised such reasonable diligent and good faith efforts to identify and locate such owners and further finds the proposed form of notice is acceptable, and issues an order granting the motion, and proof of such publication is supplied by said newspaper publisher and filed with the board, and

1.3. No response, either agreeing to lease or to otherwise participate in the subject well, is received by the operator from any such owner prior to the hearing.

 

R649-2-9b. Imposition of Statutory Risk Compensation Award.

In determining the level of any risk compensation award imposed within the range of 150% to 400% specified in Utah Code Section 40-6-6.5(4)(d)(i)(D), the board may consider, among other factors, the geologic and engineering uncertainties and difficulties in drilling the well, the availability of information from prior and/or current drilling and development in the area, and the unique and/or specified costs of the well.

 

R649-2-10. Notification of Lease Sale or Transfer.

The owner of a lease shall provide notification to any person with an interest in such lease, when all or part of that interest in the lease is sold or transferred.

 

R649-2-11. Confidentiality of Well Log Information.

1. Well logs marked confidential shall be kept confidential for one year after the date on which the log is required to be filed with the division, unless the operator gives written permission to release the log at an earlier date.

2. Information on a newly permitted well will be held confidential only upon receipt by the division of a written request from the owner or operator.

3. The period of confidentiality may begin at the time the APD is submitted for approval if a request for confidentiality is received at that time. The information on the application itself will not be considered confidential.

4. Information that shall be held confidential includes well logs, electrical or radioactivity logs, electromagnetic, electrical, or magnetic surveys, core descriptions and analysis, maps, other geological, geophysical, and engineering information, and well completion reports that contain such information.

5. The owner or operator shall clearly mark documents as confidential. Such marking shall be in red and be clearly visible.

6. Confidential wells or information shall be reported separately from wells or information that is not in confidential status.

 

R649-2-12. Tests and Surveys.

1. When deemed necessary or advisable the director or authorized agent can require that tests or surveys be made to determine the presence of waste of oil, gas, water, or reservoir energy; the quantity of oil, gas or water; the amount and direction of deviation of any well from the vertical; formation, casing, tubing, or other pressures; or any other test or survey deemed necessary to carry out the purposes of the Oil and Gas Conservation Act.

2. Directional, deviation, and/or measurements-while-drilling (MWD) surveys must be run on horizontal wells and submitted in accordance with R649-3-21, Well Completion and Filing of Well Logs, as amended for horizontal wells.

 

R649-2-13. Application of a Compulsory Pooling Order to Subsequently Drilled Wells in a Drilling Unit.

1. An initial board order compulsory pooling all interests in a drilling unit, including the terms and conditions of a JOA as adopted by the board, shall apply to any subsequently drilled well in the drilling unit as authorized under Utah Code Section 40-6-6.5(12), subject to compliance with the following:

1.1. The operator has filed with the board a motion to modify the initial order to apply its terms to an additional well in the drilling unit which sets forth by affidavit:

1.1.1. The docket and cause numbers of said initial board order;

1.1.2. The location, identification, and description of the well drilled to which the order is to apply;

1.1.3. An identification of those owners who the operator asserts have not consented to participate in the subsequent well after having been provided a Notice of an Opportunity to Participate and failing to consent or make objections as allowed by R649-2-8a, and those owners who are either locatable, unlocatable, or cannot be identified;

1.1.4. Certification that the operator has made reasonable efforts to locate and provide notice to the alleged Nonconsenting owners which shall include:

1.1.4.1. Copies of the written Notice of Opportunity to Participate sent to them together with a proof of service; or

1.1.4.2. Proof of notice by publication as required by R649-2-9a(1.2) if any such alleged Nonconsenting owner is unlocatable or not identified.

1.1.5. A statement that the average weighted landowner's royalty for the drilling unit remains the same as that provided for in the initial board order or a calculation of the average weighted landowner's royalty for the drilling unit at the time of commencement of the drilling of the subsequent well as provided in Utah Code Section 40-6-6.5(6);

1.1.6. The anticipated costs of plugging the well; and

1.1.7. The risk compensation award as determined by the board in the original order.

1.2. The motion to modify the initial board order has been mailed by the operator, together with copies of the initial board order and a recitation of the provisions of Utah Code Section 40-6-6.5(12) and R649-2-8a to all such alleged nonconsenting owners, with a certification of service evidencing the same executed and filed with the board; and

1.3. Within 30 days of the mailing of the motion, no party has filed any objection to the motion to modify the initial board order to apply to the subsequently drilled well in the drilling unit, including, without limitation, any objection to said party's alleged nonconsent status, the applicable risk compensation percentage or the reasonableness of the actual costs incurred for the subsequently drilled well.

2. Upon a written notice filed with the board stating the foregoing conditions have been satisfied, the board may enter an order declaring its initial compulsory pooling order to be applicable to such subsequently drilled well, with modifications for the matters addressed in the motion to modify the order.

3. If an owner or other person with an interest affected by the motion shall have filed an objection within 30 days of the mailing of the motion to modify the order including, but not limited to, an objection to said person's alleged nonconsent status, the applicable risk compensation percentage, or the reasonableness of the costs of the well, then the board shall set a time for a hearing in accordance with Rules of Practice Before the Board in R641-100 et. seq.

3.1. The hearing shall be limited to addressing the objections to the motion to modify the order as asserted by any party;

3.2. The operator shall have the burden to satisfy the requirements of Utah Code Section 40-6-6.5 for the granting of the motion and the objecting owner shall have the burden of establishing the merit to its objections; and

3.3. The board shall enter an order determining the application of the initial order to the subsequent well as to any party who filed objections, and how the initial order will apply to others who have not objected.

4. If there are no objections made to the motion to modify the initial compulsory pooling order, the initial order shall apply to the subsequent well as requested.

5. The terms of any JOA adopted by the board in an initial compulsory pooling order and applicable to any subsequent order may not be in the contravention of the provisions of Utah Code Section 40-6-6.5, including providing that an owner shall be entitled to receive Notice Of Opportunity to Participate in any subsequent well proposed in the drilling unit regardless of the owner's prior consent or nonconsent status on a prior well in the drilling unit.

 

KEY: consenting, nonconsenting, oil, pooling

Date of Enactment or Last Substantive Amendment: [September 21, 2017]2019

Notice of Continuation: August 26, 2016

Authorizing, and Implemented or Interpreted Law: 40-6-1 et seq.


Additional Information

More information about a Notice of Proposed Rule is available online.

The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull_pdf/2019/b20191015.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.

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For questions regarding the content or application of this rule, please contact Natasha Ballif at the above address, by phone at 801-538-5336, by FAX at , or by Internet E-mail at natashaballif@utah.gov.  For questions about the rulemaking process, please contact the Office of Administrative Rules.