No. 35449 (Amendment): Rule R277-100. Rulemaking Policy

(Amendment)

DAR File No.: 35449
Filed: 11/15/2011 05:36:55 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is amended to provide updated language and terminology, including providing for electronic communication and transmission of the rule.

Summary of the rule or change:

The changes to this rule provide updated language and terminology to the entire rule.

State statutory or constitutional authorization for this rule:

• Section 63G-3-101 et seq.
• Subsection 53A-1-401(3)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget. The changes provide updated language and terminology which do not result in costs or savings.

local governments:

There are no anticipated costs or savings to local government. The changes update language and terminology and apply to rulemaking procedures at the state level.

small businesses:

There are no anticipated costs or savings to small businesses. This rule and the changes apply to Utah State Board of Education/Utah State Office of Education rulemaking procedures and do not affect businesses.

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

There are no anticipated costs or savings to persons other than small businesses, businesses, or local government entities. This rule and the changes apply to Utah State Board of Education/Utah State Office of Education rulemaking procedures and update language and terminology.

Compliance costs for affected persons:

There are no compliance costs for affected persons. This rule and the changes apply to Utah State Board of Education/Utah State Office of Education rulemaking procedures and update language and terminology.

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

I have reviewed this rule and I see no fiscal impact on businesses.

Larry K. Shumway, State Superintendent

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

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Carol Lear at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at [e-mail]

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:

01/03/2012

This rule may become effective on:

01/10/2012

Authorized by:

Carol Lear, Director, School Law and Legislation

RULE TEXT

R277. Education, Administration.

R277-100. Rulemaking Policy.

R277-100-1. Definitions.

A. "Board" means the Utah State Board of Education[/Utah State Board for Applied Technology Education].

B. "Bulletin" means the Utah State Bulletin.

[E]C. "DAR" means the State Division of Administrative Rules.

[C]D. "Effective date" means the date on which a proposed rule becomes enforceable.

[D]E. "Hearing" means an administrative rulemaking hearing.

F. "LEA" means a local education agency, including local school boards/public school districts, charter schools, and, for purposes of this rule, the Utah Schools for the Deaf and the Blind.

[K]G. "[Executive]Leadership Committee" means the Executive Committee of the Board as defined in Board Bylaws.

[F]H. "Publication date" means the date of the Bulletin in which the rule or summary of the rule is printed.

[G]I. "Rule"

(1) means a statement made by the Board that applies to a general class of persons, rather than specific persons and:

(a) implements or interprets a statutory policy;

(b) prescribes the policy of the Board in policy consistent with Section 53A-1-401(3)[, U.C.A. 1953]; or

(c) prescribes the administration of the Board's functions or describes its organization, procedures, and operations.

(2) does not include declaratory orders under Section 63G-4-503.

[L]J. " Standing [C]committee" means a [study] committee consisting of [two or more] Board members appointed [under rules of]by the Board Leadership Committee.

[H]K. "Superintendent" means the State Superintendent of Public Instruction or the Superintendent's designee.

[I]L. "USOE" means the Utah State Office of Education.

[J]M. "USOR" means the Utah State Office of Rehabilitation.

 

R277-100-2. Authority and Purpose.

A. [The Board derives its authority for making rules from]This rule is authorized by Utah Constitution Article X, Section 3 which vests the general control and supervision of public education in the Board, [. This rule is authorized under]by Section 63G-3-101 et seq., the Utah Administrative Rulemaking Act , which specifies procedures for state agencies to follow in making rules , and by Section 53A-1-401(3) which authorizes the Board to adopt rules in accordance with its [authority]responsibilities.

B. The purpose of this rule is to conform the rulemaking procedures of the Board and divisions supervised by the Board to those required under the Utah Administrative Rulemaking Act.

 

R277-100-3. Initiation, Amendment, or Repeal of a Rule.

A. The Board may make, amend, or repeal rules.

(1) Rulemaking is required by the Board when:

(a) explicitly or implicitly required by statutory or federal mandate; and either

(b) Board action affects a class of persons; or

(c) Board action affects the operations of another agency, except as provided in [subs]Section R277-100-3A(2)(c)[of this section].

(2) Rulemaking is not required by the Board when:

(a) a procedure or standard is already described in statute;

(b) Board action affects an individual person, not a class of persons;

(c) Board action concerns only the internal management of the Board, USOR, or USOE[, school districts, or of entities administered by the Board, USOR, USOE, or school districts, and does not affect private persons as a class, other agencies, or other governmental entities];[or]

(d) the Board or Agency action is a grammatical or other insignificant [rule changes]revision that do es not affect policy or the application[ or results] of Board decisions[.]; or

(e) the Board or Agency action meets the standards of Section 63G-3-201(4).

B. Public Petition

(1) Any person may petition the Board to make, amend, or repeal a rule. The petition shall contain the name and address of the person submitting the rule, a written copy of the proposal, a statement concerning the Board's legal authority to act, and the reasons for the proposal. The petition is submitted to the Superintendent.

(2) The Superintendent reviews petitions prior to consideration by the Board. Within 30 days after receiving a petition, the Superintendent does one of the following:

(a) Notifies the petitioner [by mail] that the petition has been denied and gives reasons for the denial; or

(b) Notifies the petitioner [by mail] that the petition has been accepted, and specifies a date on which rulemaking procedures will be initiated. Changes in the petitioner's proposal suggested by the Superintendent are included in the notice.

(3) A petitioner may appeal a decision by the Superintendent by sending a signed request for consideration of the appeal, including a copy of the original proposal and copies of correspondence with the Superintendent, if any, to the Chair[man] of the Board. The Chair[man] presents the appeal to the Board. If the Board votes to review the proposal, it is scheduled for a future meeting of the Board. The decision of the Board is final.

 

R277-100-4. Procedures for Making, Amending, or Repealing a Rule.

A. Regular Rules

(1) Prior to submitting a proposed rule to the Board, the Superintendent shall ensure that reasonable efforts have been made to solicit information from [school district]LEA officials, professional associations, and other affected parties concerning the need for, and content of, the proposed rule.

(2) Upon receiving notice of a proposed rule, the [Executive]Leadership Committee of the Board assigns the proposed rule to a standing committee or to the entire Board.

(3) If a Board standing committee reads a proposed rule initially, the rule shall be read a second time before the entire Board and the second reading shall include discussion of the standing [C]committee report; and

(4) After the entire Board reads a proposed rule, the Board may choose to:

(a) consider the rule again at [its next]a future meeting with revisions incorporating Board suggestions, by directing the Superintendent to change the proposed rule;

(b) receive notice of the proposed rule in its final form on the next Board agenda, by directing the Superintendent to put the rule with its effective date on the consent calendar for the Board's next meeting;

(c) allow the rule to become effective 30 days after publication in the State Bulletin if the proposed rule is not rewritten to incorporate public comments or suggestions, by directing the Superintendent to send DAR notice of an effective date for the proposed rule. The date shall be no fewer than 30 days nor more than 90 days after the publication date of the proposed rule; or

(d) direct the Superintendent to take no further action on the rule.

(5) Following the Board's approval of a proposed rule, the Board directs the Superintendent to prepare a rule analysis form and file the form and a copy of the proposed rule with DAR.

The Superintendent shall also send a copy of the proposed rule or make the rule available electronically to:

(a) persons who have filed a timely request with the Superintendent;

(b) school district superintendents and charter school directors;

(c) persons who must be given notice by statutory or federal mandate; and

(d) other persons who, in the judgment of the Superintendent, should receive notice.

(6) The Board allows at least 30 days after publication in the Bulletin for public comment on the proposed rule.

(a) The Superintendent maintains a file containing a copy of the proposed rule and the rule analysis form, and makes the file available to the public during the regular business hours of the USOE upon request. Written comments, notes on verbal comments, information received electronically, and hearing records, if any, are kept in the file.

(b) Hearings may be held by the Board as described in Section R277-100-6.

(c) The Board may follow [Subs]Section s R277-100-4B or R277-100-4C [of this section] to amend a rule after reviewing public comment.

(d) During the 30-day comment period, the Board may direct the Superintendent to take no further action on a rule. The proposed rule automatically expires 90 days after its publication date.

B. Nonsubstantive Changes in a Rule

(1) Nonsubstantive changes may be made in a rule under this section both before and after the effective date of the rule.

(2) A change is nonsubstantive if, in the opinion of the Superintendent, it does not affect Board policy, application of the rule, or results of Board action under the rule.

(3) To enact a nonsubstantive change, the Superintendent prepares a copy of the new version of the rule and files it with the DAR. The new version is effective upon filing.

C. Substantive Changes in a Proposed Rule

The Board may make a change in a previously published proposed rule prior to its effective date. The Board directs the Superintendent to:

(1) prepare a new rule analysis form describing the change, and file it and a copy of the revised proposal with DAR; and

(2) notify DAR of the effective date of the revised rule. The rule will automatically become effective 30 days after its new publication date if no other date is specified.

D. Emergency Rules

(1) An emergency rule may be adopted under this section if the Superintendent finds that delay resulting from following normal procedures will:

(a) result in imminent peril to the public health, safety or welfare;

(b) cause an imminent budget reduction because of budget restraints or federal requirements; or

(c) place the Board in violation of federal or state law.

(2) The Superintendent notifies the Board Chair[man] of the need to enact an emergency rule.

(3) If the Board Chair[man] concurs in the recommendation, the Superintendent:

(a) prepares and files a copy of the proposed emergency rule and the rule analysis form with DAR, stating specific reasons for the adoption of the rule;

(b) notifies DAR of the effective date and the lapsing date for the proposed emergency rule. If no effective date is specified, the proposed emergency rule becomes effective on the filing date. If no lapsing date is specified, the proposed emergency rule lapses 120 days after the filing date. No emergency rule may remain in effect for more than 120 days; and

(c) mails a copy of the rule analysis form to the members of the Board and to persons specified in [subs]Section R277-100-4A(5)[of this section].

 

R277-100-5. Formal Adoption by the Board of Procedures, Handbooks, and Manuals, and Reference to those Documents in Rules.

A. Under Board direction, divisions under the supervision of the Board, periodically develop or amend various policy manuals or policy handbooks which may not necessarily qualify to be rules or are not suitable for the normal rulemaking procedures. These shall be presented to the Board for purposes of formal adoption or amendment.

B. [Districts]LEAs shall [be promptly notified of]have electronic access to such documents which are to be considered for adoption by the Board.

C. [Local school boards and school districts]LEAs shall comply with the provisions of such documents, after the formal adoption or amendment by the Board of a USOE policy manual or policy handbook.

D. Following formal review by the Board, the Board's designation of a handbook, manual, or similar document as a policy manual or policy handbook is conclusive for purposes of this rule.

 

R277-100-6. Hearings.

A. When to hold hearings

(1) The Board may hold hearings during a regular or special meeting.

(2) The Board shall hold hearings if:

(a) required by state or federal law; or

(b) an affected agency, ten persons, or an organization having not fewer than ten members submits a written request for a hearing to the Superintendent not more than 15 days after the publication date of the proposed rule, amendment, or rule repeal. The hearing shall be held within 30 days of receipt of the request.

B. Hearing Procedures

(1) Notice of hearing regarding proposed rules published in the Bulletin is provided by:

(a) publication of the hearing date, time, place, and subject matter in the Bulletin;

(b) posting of the notice of information contained on the rule analysis form in a place [in the USOE] frequented by the public consistent with Title 52, Chapter 4, Open and Public Meetings Act;

(c) sending persons who receive rule analysis forms under [s]Section R277-100-4A(5) written notice of any changes made in the notice information contained on the rule analysis form;

(d) giving further notice required by law or regulation; and

(e) sending notice to those requesting the hearing, if the hearing is requested under [s]Section R277-100-6A(2)(b).

(2) Notice of hearings held prior to proposing the rule is given by:

(a) posting the hearing date, time, place, and subject in a place [in the USOE] frequented by the public consistent with Title 52, Chapter 4, Open and Public Meetings Act; and

[ (b) notifying a local media correspondent; and

] ([c]b) [mailing]providing the notice information to persons specified in [s]Section R277-100-4A([2]1).

C. The Board may hold the hearing itself, or appoint any person who can fairly conduct the hearing, other than the Superintendent, to be the hearing officer. The hearing officer shall know rulemaking procedures, but may not be directly responsible for administering the rule.

D. Conducting the Hearing

(1) Upon opening the hearing, the hearing officer explains the purpose of the hearing and invites orderly, germane comment[ for a minimum of one hour]. The hearing officer may set time limits for speakers and otherwise control prudent use of time.

(2) The hearing officer rules on questions of relevance and redundancy. Oaths, cross-examination, and rules of evidence are not required. The hearing is conducted as an open, informal, orderly, and informative meeting.

(3) A person familiar with the rule at issue may be asked to be present at the hearing to respond to inquiries and to provide information.

(4) The hearing officer may invite[s] written comment to be submitted at the hearing or within a reasonable time thereafter. Written comments shall include the name, address, and, if applicable, the organization represented by the person making the comments. Written comment or electronically received comment [is]shall be appended to the hearing minutes.

E. The Record

(1) The hearing officer or a person appointed to take minutes records the name, address, and organization represented by each person speaking at the hearing, and a brief summary of the remarks.

(2) In the alternative, a hearing may be recorded by audio or video.

([2]3) Hearing minutes, a hearing recording (if available), a copy of the proposed rule, written comments, the findings and recommendations of the hearing officer, the decision of the Board, and other pertinent documents constitute the record of the hearing. The record is maintained in a file available to the public at the USOE during regular business hours by appointment.

F. Findings and Recommendations

(1) The hearing officer makes written findings and recommendations, including any facts pertinent to the hearing, recommendations for Board action, and reasons for the recommendations.

(2) The hearing officer transmits the findings, recommendations, and the complete record of the hearing to the Board as soon as possible following the close of the hearing.

(3) When the Board conducts the hearing, the Chair[man] prepares written findings, the decision, and reasons for the decision.

G. The Decision

(1) The Board issues a written decision as soon as possible after the close of the hearing and before the rule becomes effective. The decision states whether the proposed rule will be adopted, changed, or withdrawn; any alternative action such as whether a rule will be proposed on the subject matter of the hearing; and reasons for the decision. The written decision is included in the hearing record.

(2) If the hearing is held under [subs]Section R277-100-6A(2)[of this section], the Board mails a copy of or sends electronically the decision to the person who requested the hearing.

H. A decision of the Board may be appealed to a district court.

 

R277-100-7. Board Review of Rules.

A. Five Year Review

(1) The Board reviews each rule within five years of its effective date and at five year intervals thereafter.

(2) The Superintendent shall coordinate with DAR to ensure that all Administrative rules are adequately reviewed by the Board prior to the five year review deadline.

(3) All other paperwork shall be completed by the Superintendent to repeal or reenact the rules.

B. Declaratory Judgments on the Applicability of a Rule

(1) An interested person may petition the Board for a ruling on the applicability of a particular Board provision, rule, or order in a stated case by filing a petition for a declaratory judgment with the Superintendent.

(2) The petition shall contain the petitioner's name, address, and phone number; the Board provision, rule, or order; and a statement of the facts of the case. The petition shall be filed within six months of the application of the rule to the interested party or to a person represented by the interested party.

(3) Within 15 days of the filing of the petition, the Superintendent makes a recommendation to the Board regarding the applicability of the provision, rule, or order to the case.

(4) Prior to issuing a decision, the Board may:

(a) conduct a hearing on the matter under Section R277-100-6. The hearing shall begin no sooner than 15 days and no later than 45 days after receiving the petition; or

(b) appoint a staff member to conduct an investigation of the case. The investigator makes a recommendation to the Board as soon as possible after the close of the investigation.

(5) The Board notifies the petitioner by certified mail of its decision to conduct a hearing or investigation. Notice includes the time, date, and place of the hearing and the name of the hearing officer; or, in the case of an investigation, the name of the staff member responsible for conducting the investigation.

(6) The Board issues a ruling regarding the applicability of the provision, rule, or order within 60 days of the filing of the petition, or if a hearing is held, as soon as possible after the close of a hearing. The Board's ruling includes reasons for the decision and is sent by certified mail to the petitioner.[

 

R277-100-8. Miscellaneous.]

[A.](7) The Superintendent maintains a complete copy of the Board's current rules for public inspection at the Superintendent's Office during regular business hours.

[ B. An applicable federal or professionally recognized uniform code rule may be incorporated by reference into Board rules if the Board:

(1) includes both the federal or uniform rule in the rule;

(2) states specifically in its rules which federal and uniform rules are incorporated by reference, and any Board deviation from them; and

(3) maintains for public inspection at the USOE, USOR and DAR complete and current copies of federal and uniform rules incorporated by reference.

C. Deadlines for publication in the Bulletin are the first day of the month for the Bulletin issued on the fifteenth and the fifteenth day of the month for the first issue of the next month.

D. If any provision of this policy conflicts with an applicable provision of the Utah Administrative Rulemaking Act or a corresponding DAR regulation, the act or regulation controls.

 

R277-100-9. Rules Not Requiring Board Action.

A. Rules authorized or required of the USOE or USOR by previous Board action, or by state or federal law or regulation, may be adopted by the USOE or USOR without Board action. Procedures for USOE rulemaking are set forth in the Administrative Rulemaking Act, Chapter 46a of Title 63, Utah Code Annotated 1953, and applicable regulations promulgated by the DAR. The procedures are essentially the same as the foregoing for Board adoptions, with the following substitutions:

(1) for "Board," read "USOE", "USOR", "Executive Director", or "Superintendent" as appropriate.

(2) for "Superintendent," read "Executive Director" or "Associate Superintendent who administers the affected program."

B. Notice concerning rules to be adopted under this section shall be given to the Board within 30 days after commencement of rulemaking.]

 

KEY: administrative procedures, rules and procedures

Date of Enactment or Last Substantive Amendment: [1990]2012

Notice of Continuation: November 10, 2010

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 63G-3-101 et seq.; 53A-1-401(3)

 

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