Rep. Wayne Harper’s bill entitled “Utah Administrative Rulemaking Act Amendments” is now numbered. H.B. 91
adds new language to Sections 63-46a-4 (proposed rules), 63-46a-7 (emergency rules), and 63-46a-10 (division duties). It also makes related technical changes in Sections 53C-1-201 and 63-46a-10.5.
The bill changes the rulemaking process in several important ways:
- It requires the agency to notify the sponsor of legislation (hereafter “sponsor”) on which the agency has relied for its rulemaking authority. The agency is to provide this notice on the same day the agency files the proposed rule with the Division of Administrative Rules. The notification consists of an “electronic copy of the proposed rule and the rule analysis….” (See lines 125 through 129.)
- It gives the sponsor an additional period of time in which to review and comment on a proposed rule. This period may range from approximately two weeks to a month before the public sees it depending upon when, during the filing window, the agency files the rule. (See line 125.)
- It expressly states options available to the sponsor if the sponsor “determines that the proposed rule, in whole or in part, does not comply with the intent of the legislation….” These options include meeting with or providing oral or written comment to the agency; and contacting the Legislature’s Administrative Rules Review Committee (ARRC) and requesting a hearing to discuss the sponsor’s concerns. (See lines 130 through 135.)
- It expressly requires the agency to send a proposed rule “to the sponsor of cited legislation if the legislation: (i) creates an expressed, implied, or perceived obligation on the part of any agency to draft a rule; (ii) is cited by the agency as authority for the rule; and (iii) was enacted no more than two years prior to the date that the rule is submitted to the division.” (See lines 136 through 141, 187, and 188.)
- It explicitly requires an agency to include as part of the “purpose of the rule or reason for the change … the bill number of the legislation the rule is intended to implement…” (See lines 156 and 157.)
- It expressly requires an agency to send the sponsor an electronic copy of an emergency rule at the same time it is filed with the Division of Administrative Rules. (See lines 214 through 216.)
- It requires the Division of Administrative Rules, after each general election, to notify legislators about the Division’s publications and how they may obtain a copy of each. (See lines 252 and 253.)
- It makes minor, technical changes.
I offer some additional observations about H.B. 91:
- It appears that the bill implicitly requires an agency to track legislation that “creates an expressed, implied, or perceived obligation” for rulemaking and the legislator who sponsored the legislation for a period of two years. Thanks to the “Bills Passed” list maintained by Legislative Research and General Counsel, this task is not as daunting as it may have once been. However, it is not clear whether or not an agency will be required to notify former legislators. As I understood the sponsor’s intent, an agency will be obliged to notify a sponsor who is no longer a member of the legislature.
- After asking what “sponsor” meant, I was told that it was the first name listed on the bill after the word sponsor. I quickly searched the Utah Code and the Joint Rules of the Legislature looking for such a definition. I was unable to find one. I will follow up on this.
- The information that an agency sends to the sponsor will not take into account requests for additional information made by the Division of Administrative Rules to assure compliance with the act. So, what the sponsor sees on the rule analysis may or may not look the same.
- Finally, it is important to note what the bill does NOT do. It does not permit a sponsor to stop a rule. If a sponsor has a concern, the sponsor uses the same processes available to everyone else (visit the agency/oral comment, written comment, call the ARRC).
Feel free to contact me if you have questions or concerns about the bill.
— Ken Hansen