No. 29554 (Amendment): R15-3-5. Statutory Provisions that Require Rulemaking Pursuant to Subsection 63-46a-4(11)

DAR File No.: 29554
Filed: 02/26/2007, 12:51
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This amendment clarifies the meaning of the phrase "statutory provision that requires the rulemaking" which was added at Subsection 63-46a-4(11) by H.B. 327 (2007). Subsection 63-46a-4(11) requires an agency to "initiate rulemaking proceedings no later than 180 days after the effective date of the statutory provision that requires the rulemaking." If the agency is unable to file the rule by the deadline, it is required to "appear before the legislative Administrative Rules Review Committee and provide the reasons for the delay." Therefore, H.B. 327 has created a procedure that an agency must follow. Failure to follow this procedure potentially opens an administrative rule to challenge in court under the provisions of Section 63-46a-12.1. Therefore, the Division is promulgating this rule so that agencies clearly understand when rulemaking is required for the purposes of Subsection 63-46a-4(11). Section 63-46a-3 describes instances when rulemaking is required to include an agency action that "authorizes, requires, or prohibits an action; ... provides or prohibits and material benefit; ... applies to a class of persons or another agency; and ... is explicitly or implicitly authorized by statute." In practical terms, an agency may not know that a bill implicitly requires rulemaking until events transpire that make that clear. The Legislature recognizes this; the principle is embodied in Subsections 63-46a-3(2)(a) through (d) and Section 63-46a-3(3). Subsection 63-46a-3(2) applies to explicit direction to engage in rulemaking. Then, Subsections 63-46a-3(2)(a) through (d) and Section 63-46a-3 clearly address instances when an agency's future action will demonstrate the need for a rule. Reasonably, H.B. 327 can be understood to apply only to explicit, clearly identifiable, affirmative obligations (i.e., "shall make rules") to engage in rulemaking. The purpose of requiring an agency to promulgate rules when agency action implicitly requires rulemaking is to direct the agency to engage in rulemaking if it discovers at some point in time after a law is enacted that its provisions require the agency to take certain actions. An agency cannot logically foretell every instance in which a statute may require rulemaking as the statute goes into effect. On the other hand, an agency can identify an explicit mandate to make rules within statute, and can respond by filing a rule or scheduling an appearance before the Administrative Rules Review Committee. The Administrative Rules Review Committee raised this very question when it heard the bill on January 31, 2007. The committee was told that H.B. 327 was not intended to apply to permissive grants of rulemaking. As a practical matter, any other interpretation than that established by this proposed amendment is problematic. If the phrase "statutory provision that requires the rulemaking" were interpreted broadly to include permissive grants, any agency affected by any piece of legislation would need to schedule an appointment with the Administrative Rules Review Committee to meet the procedural requirement imposed by H.B. 327.

Summary of the rule or change:

This amendment clarifies that "statutory provision that requires the rulemaking" means a state statutory provision that explicitly mandates rulemaking.

State statutory or constitutional authorization for this rule:

Sections 63-46a-10, 63-46a-3, and 63-46a-4

Anticipated cost or savings to:

the state budget:

This proposed amendment imposes no costs nor accrues any savings to the state budget. The proposed amendment clarifies the meaning of statutory language.

local governments:

The Division does not regulate local government. Therefore, there are no costs or savings to local government.

other persons:

This proposed amendment imposes no costs nor accrues any savings to other persons. The proposed amendment clarifies the meaning of statutory language.

Compliance costs for affected persons:

This rule directly affects state agencies. No persons, as defined by the Rulemaking Act, are directly affected.

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

This proposed amendment clarifies statutory language passed during the 2007 General Session. It does not have any fiscal impact on business. Kimberly K. 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
Administrative Rules
Room 4120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Kenneth A. Hansen at the above address, by phone at 801-538-3777, by FAX at 801-538-1773, 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:

04/16/2007

This rule may become effective on:

04/23/2007

Authorized by:

Kenneth A. Hansen, Director

RULE TEXT

R15. Administrative Services, Administrative Rules.

R15-3. Definitional Clarification of Administrative Rule.

R15-3-5. Statutory Provisions that Require Rulemaking Pursuant to Subsection 63-46a-4(11).

For the purposes of Subsection 63-46a-4(11), the phrase "statutory provision that requires the rulemaking" means a state statutory provision that explicitly mandates rulemaking.

 

KEY: administrative law

Date of Enactment or Last Substantive Amendment: [June 1, 1996]2007

Notice of Continuation: September 29, 2005

Authorizing, and Implemented or Interpreted Law: 63-46a-10; 63-46a-3, 63-46a-4