No. 29474 (Amendment): R23-25. Administrative Rules Adjudicative Proceedings

DAR File No.: 29474
Filed: 02/01/2007, 10:26
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R23-25, under the authority of the Utah Administrative Procedures Act and the Utah State Building Board, sets forth the standards and procedures governing all adjudicative proceedings of the Utah State Building Board and the Division of Facilities, Construction and Management (DFCM). The Five-Year Notice of Review and Statement of Continuation for this rule was filed with the Division of Administrative Rules on 09/06/2006, with the intention of presenting amendments to the rule at a future Building Board meeting for consideration and approval. Amendments are being made to comply with current law.

Summary of the rule or change:

The amendments to this rule provide technical corrections and clarifications in compliance with the Utah Administrative Procedures Act, Section 63-46b-0.5 et seq.; provide clarification of the provisions for procedures of adjudicative proceedings; and adds provisions to include allowing agency reconsideration, and waiver provisions.

State statutory or constitutional authorization for this rule:

Subsection 63a-5-103(1)(e) and Section 63-46b-0.5 et seq.

Anticipated cost or savings to:

the state budget:

The amendments to this rule provide technical corrections in compliance with the Administrative Procedures Act, Section 63-46b-0.5 et seq., make clarifications, and housekeeping changes. Therefore, DFCM determines that there is no cost or savings impact as result of these amendments.

local governments:

The amendments to this rule do not create any direct cost or savings impact to local governments because they are not directly affected by the rule. Nor are local governments indirectly impacted because the rule does not require services from local governments.

other persons:

The amendments to this rule provide technical corrections in compliance with the Administrative Procedures Act, Section 63-46b-0.5 et seq., make clarifications, and housekeeping changes. Therefore, this rule does not impose any additional requirements on persons, nor generate a cost or saving impact to other persons.

Compliance costs for affected persons:

The amendments to this rule provide technical corrections in compliance with the Administrative Procedures Act, Section 63-46b-0.5 et seq., make clarifications, and housekeeping changes. DFCM determines that there are no compliance costs for affected persons.

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

The amendments to this rule provide technical corrections in compliance with the Administrative Procedures Act, Section 63-46b-0.5 et seq., make clarifications, and housekeeping changes. Therefore, the amendments to this rule do not create an impact on businesses. Kim Hood, Executive Director

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

Administrative Services
Facilities Construction and Management
Room 4110 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Debbie Merrill, Priscilla Anderson, or Alan Bachman at the above address, by phone at 801-538-3240, 801-538-9595, or 801-538-3105, by FAX at 801-538-3313, 801-538-3378, or 801-538-3313, or by Internet E-mail at [e-mail], [e-mail], or [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:

03/19/2007

This rule may become effective on:

03/26/2007

Authorized by:

Keith Stepan, Director

RULE TEXT

R23. Administrative Services, Facilities Construction and Management.

R23-25. Administrative Rules Adjudicative Proceedings.

R23-25-1. Purpose and Authority.

(1) Under the authority of Section 63a-5-103(1)(e), this rule establishes procedures for adjudicative proceedings in accordance with the Utah Administrative Procedures Act, Section 63-46b-0.5 et seq., except as provided in Subsections (2) through (4).

(2) This rule does not apply to an Agency action that is not governed by the Administrative Procedures Act and the laws of the State of Utah, including:

(a) Subsection 63-46b-1(2), Administrative Procedures Act;

(b) Title 63, Chapter 56, Utah Procurement Code;

(c) Title 63a, Chapter 5, Part 1, State Building Board; and

(d) Title 63a, Chapter 5, Part 2, Division of Facilities Construction and Management.

(3)(a) The provisions of this rule do not govern actions or proceedings that a federal statute or regulation requires be conducted solely in accordance with federal procedures.

(b) If a federal statute or regulation requires a modification to these procedures, the federal procedures prevail.

(4) To the extent that this rule conflicts with a similar rule governing the agency, the conflicting provisions of the other rule shall govern.

 

R23-25-2. Designation of Proceedings.

[(1) ]The Agency designates all agency action subject to the scope and applicability of the Utah Administrative Procedures Act, Section 63-46b-[1]0.5 et seq. as informal proceedings.

[ (2) Pursuant to Section 63-46b-1(2)(g), all agency action under the authority of the Utah Procurement Code, Section 63-56-1 et seq., Administrative Rules R23-1, R23-2, R23-4, R23-20 and R23-21 are not governed by the Administrative Procedures Act. The exclusion provided by Section 63-46b-1(2)(g) shall include all matters relating to the procurement of supplies, services, construction, professional services such as architects, engineers and project managers, debarment proceedings, protest relating to the solicitation and award of contracts and contract controversies based upon breach of contract, mistake, misrepresentation, or other causes for contractual modification or rescission, and all leasehold space in real property to be occupied by the state or any department, commission, institution or agency of the state as required pursuant to Section 63A-5-204.

]

[R23-25-2. Authority.

This rule is enacted in compliance with the Utah Administrative Procedures Act, Section 63-46b-1, et seq. and under the authority of the Utah State Building Board, Section 63A-5-101 and the Department of Administrative Services, Division of Facilities Construction and Management, Section 63A-5-201 et seq.

 

]R23-25-3. Definitions.

(1) The terms used in this rule are defined in Section 63-46b-2.

(2) In addition:

([2]a) "Agency" means the Utah State Building Board [and]or the Division of Facilities Construction and Management.

(b) "Presiding officer" means the director of the Division of Facilities Construction and Management, or the director's designee.

 

R23-25-4. Procedure.

[In compliance with]Pursuant to Section 63-46b-5, the procedure for informal adjudicative proceedings is as follows:

(1)(a) The respondent to a notice of agency action or request for agency action [pursuant to Section 63-46b-3, shall file with the agency an answer or responsive pleading to the allegations contained in the notice of agency action or the request for agency action]shall file and serve a written response, signed by the respondent or [his]the respondent's representative, within 30 days [following receipt of the adverse party's pleading]of mailing of the notice of agency action, or within 30 days of notice of the Agency setting the matter for an informal adjudicative proceeding.

(b) The response shall be filed with the [agency]Agency and one copy shall be sent by mail to each party.

(c) Failure to file a responsive pleading[ without good cause] may result in a default pursuant to Section 63-46b-11.

(2)(a) A hearing shall be provided to any party to the proceeding requesting a hearing.

(b) The Agency shall hold a hearing if required by statute or rule.

(c) A request for a hearing shall be in writing and filed [with the agency no later than ten days following receipt of the adverse party's answer or responsive pleading]at the same time the respondent submits a written response as provided in Subsection (1)(a).

(3) In the hearing, the parties named in the notice of agency action or in the request for agency action may be represented by counsel and shall be permitted to testify, present evidence and comment on the issues.

(4) Hearings will be held only after [a ]timely notice[ has been mailed] to all parties.

(5)(a) Discovery is prohibited, but the agency may issue subpoenas or other orders to compel production of necessary evidence.

(b) Each party to the proceeding [will be]is responsible for ensuring the appearance and associated costs of[ its own] witnesses.

(6) All parties shall have access to information contained in the agency's files and to all materials and information gathered in any investigation, to the extent permitted by law.

(7) Intervention is prohibited, except that intervention is allowed where a Federal statute or rule requires that the state [permit]allow intervention.

(8) All hearings [shall be open to all parties]are open to all parties, except the presiding officer may take appropriate measures to preserve the integrity of the hearing, including the exclusion of a witness if requested by a party, and the protection of confidentiality of records or other information protected by law.

(9) Within a reasonable time after the close of the hearing, or after the party's failure to request a hearing[ within the time prescribed by these rules], the presiding officer shall issue a signed order in [writing that states the following:]accordance with Subsections 63-46b-5(1)(i), (j), and (k).

([a]10) [ The decision;

(b) The reasons for the decision;

(c) A notice of any right of administrative or judicial review available to the parties; and

(d) The time limits for filing an appeal or requesting a review.

(10) The presiding officer's order shall be based on the facts appearing in the agency's files and on the facts presented in evidence at any hearings.

(11) A copy of the presiding officer's order shall be promptly mailed to each of the parties.

(12) ]All hearings shall be recorded at the agency's expense.[ Any party, at his own expense, may have a reporter approved by the agency prepare a transcript from the agency's record of the hearing.]

([13]11) Nothing in this section restricts or precludes any investigative right or power given to [an]the agency by[ another] statute.

 

R23-25-5. Agency Review or Reconsideration.

[ Pursuant to the Utah Administrative Procedures Act, Section 63-46b-12, the Agency does not enact a rule permitting agency review.

] (1)(a) If the agency director is the presiding officer, and not a designee, there is no agency review permitted pursuant to Section 63-46b-12.

(b) If the agency director designates another person as the presiding officer, then a party may seek review of the presiding officer's order by filing a written request with the agency director.

(c) The requirements provided in Section 63-46b-12 shall apply to any agency review.

(2)(a) Nothing contained in this Rule prohibits a party from filing a petition for reconsideration pursuant to Utah Administrative Procedures Act, Section 63-46b-13.

(b) The requirements provided in Section 63-46b-13 shall apply to any agency reconsideration.

 

R23-25-6. Public Petition for Declaratory Orders.

Petitions for declaratory orders shall be made and processed in accordance with the Department of Administrative Services Rule R13-1.

 

R23-25-7. Emergency Orders.

Emergency orders may be issued by the agency in accordance with Section 63-46b-20.

 

R23-25-8. Exhaustion of Administrative Remedies.

(1) A person must exhaust their administrative remedies in accordance with Section 63-46b-14 prior to seeking judicial review.

(2) In any adjudicative proceeding before the agency there shall be an opportunity for an affected party to respond and participate.

(3) Only an aggrieved party that has exhausted the available and adequate remedies before the presiding officer, including any agency review or reconsideration by the agency director, may seek judicial review of the final decision of the agency director.

 

R23-25-9. Civil Enforcement.

In addition to any other remedy provided by law or any other rule applicable to the agency, civil enforcement may be pursued as provided under Section 63-46b-19.

 

R23-25-10. Waivers.

(1) In addition to any other waiver allowed by law or this rule, any procedural matter, including any right to notice or hearing, may be waived by the affected person by signing a written waiver in a form approved by the agency.

(2) The waiver provision of this rule may not be construed to prohibit a finding of default as provided in Subsection R23-25-4(1)(c) or Section 63-46b-11.

 

R23-25-11. Agency Rights and Remedies.

Agency reserves all rights, remedies and available procedures under the Utah Administrative Procedures Act, Section 63-46b-[1,]0.5, et seq., unless the reservation is in conflict with the provisions of this Rule.

 

KEY: administrative law, adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [1994]2007

Notice of Continuation: September 6, 2006

Authorizing, and Implemented or Interpreted Law: 63-46b-1