No. 43722 (New Rule): Rule R914-4. Challenging Corrective Action Orders

(New Rule)

DAR File No.: 43722
Filed: 05/17/2019 01:30:09 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Creating this rule is required by Subsection 72-10-110(2)(d)(ii), which states, "The department [of Transportation] shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish a process for challenging the department's calculation under Subsection [72-10-110](2)(d)(i)." The Legislature included Subsection 72-10-110(2)(d) as part of S.B. 200, passed in the 2018 General Session. Subsection 72-10-110(2)(d) took effect on 01/01/2019.

Summary of the rule or change:

This new rule provides a procedure by which an owner of an aircraft may challenge the Department of Transportation's (Department) calculation of the average wholesale value of an aircraft and other actions.

Statutory or constitutional authorization for this rule:

• Subsection 72-1-201(1)(h)
• Subsection 72-10-110(2)(d)(ii)

Anticipated cost or savings to:

the state budget:

The Department anticipates this proposed new rule will have a direct fiscal impact on the state's budget. The Department will provide an officer to preside over challenge proceedings pursuant to this rule. The aggregate fiscal impact of this new rule is unknown and impossible to estimate until after the rule has been in effect long enough to assess the number of challenges that are filed under the rule.

local governments:

This proposed new rule will not have a fiscal impact on local governments because they are exempt from property taxes, and this new rule relates to challenging valuation of aircraft for property tax purposes.

small businesses:

This proposed new rule will not have a direct fiscal impact on small businesses. This new rule provides businesses and individuals a process to follow to exercise their due process right to challenge the Department's valuation of aircraft for taxation purposes.

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

This proposed new rule will not have a direct fiscal impact on persons other than small businesses, businesses, or local government entities. This new rule provides businesses and individuals a process to follow to exercise their due process right to challenge the Department's valuation of aircraft for taxation purposes.

Compliance costs for affected persons:

There are no compliance costs associated with this proposed new rule. Any affected person may file a challenge under this rule without cost.

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

This proposed new rule will not have a fiscal impact on businesses generally.

Carlos Braceras, Executive Director

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

Transportation
Operations, Aeronautics
135 N 2400 W
SALT LAKE CITY, UT 84116-2982

Direct questions regarding this rule to:

• Christine Newman at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]
• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]
• Linda Hull at the above address, by phone at 801-965-4253, by FAX at , or by Internet E-mail at [e-mail]
• Josh Dangel at the above address, by phone at 269-217-7091, by FAX at , 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:

07/15/2019

This rule may become effective on:

07/22/2019

Authorized by:

Carlos Braceras, Executive 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

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non-Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

1. Creating this rule is required by Subsection 72-10-110(2)(d)(ii), which states, "The department [of Transportation] shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish a process for challenging the Department's calculation under Subsection [72-10-110](2)(d)(i)." The Legislature included subsection 72-10-110(2)(d) as part of S.B. 200 from the 2018 General Session. Subsection 72-10-110(2)(d) took effect on 01/01/2019. This new rule provides a procedure by which an owner of an aircraft may challenge the Department's calculation of the average wholesale value of an aircraft and other actions.

 

2. This proposed new rule will not have a direct fiscal impact on business or private individuals. This new rule provides businesses and individuals a process to follow to exercise their due process right to challenge the Department's valuation of aircraft for taxation purposes.

 

3. This proposed new rule will not have a fiscal impact on local governments because they are exempt from property taxes.

 

4. This analysis was reviewed and approved by the executive director of the Department of Transportation.

 

 

R914. Transportation, Operations, Aeronautics.

R914-4. Challenging Corrective Action Orders.

R914-4-1. Purpose and Authority.

(1) The purpose of this administrative rule is to provide a procedure by which an owner of an aircraft may challenge the Department's calculation of the average wholesale value of the aircraft and other actions.

(2) Utah Code Subsection 72-10-110(2)(d)(ii) requires the Department to make this rule. The Department has general rulemaking authority granted by Subsection 72-1-201(1)(h).

 

R914-4-2. Definitions.

As used in this rule:

(1) "Department" means the Utah Department of Transportation;

(2) "Director" means the Director of Utah Department of Transportation, Division of Aeronautics;

(3) "Division" means the Utah Department of Transportation Division of Aeronautics.

(4) "Presiding Officer" means the Director of Operations for the Department or a person designated by the Director of Operations to conduct an appeal proceeding and issue a decision on a review.

(5) "Review" means an appeal of agency action to challenge a corrective action order issued by the Division.

 

R914-4-3. Initiating an Appeal.

(1) Persons wanting to file an appeal with the Division must either email their Request for Agency Action to the Division at: [e-mail], or deliver it by postal or personal delivery to: Utah Department of Transportation; Division of Aeronautics135 North 2400 West; Salt Lake City, Utah 84116.

(2) Appeals may be delivered or sent by electronic mail; and must be received by the Division before 5:00 P.M. of the 30 ^th day after the date of the Letter of Notification for Aircraft Registration.

(3) Appeals must be filed using the form ADF-38 provided by the Division.

(4) The Division will adjudicate all appeals as expeditiously as reasonably possible.

 

R914-4-4. Appeal Proceedings.

(1) All appeal proceedings will be informal.

(2) All appeal proceedings will be conducted by the presiding officer.

(3) The presiding officer may hold a hearing if the presiding officer determines a hearing is necessary or if the person making the appeal asks for a hearing with the appeal; however, a hearing is not required.

(4) If the presiding officer determines to hold a hearing, it will be conducted according to the requirements of Utah Code Section 63G-4-203.

(5) After an appeal is filed, the presiding officer will determine whether the appeal is timely filed and complies fully with the requirements of this rule R914-4.

(6) If the presiding officer determines that the appeal is not timely filed or that the appeal does not fully comply with this rule, the presiding officer will dismiss the appeal without holding a hearing.

(7) If the presiding officer determines that the appeal is timely filed and complies fully with this rule, the presiding officer will:

(a) Dismiss the appeal without holding a hearing if the presiding officer determines that the appeal alleges facts that, if true, do not provide an adequate basis for the appeal;

(b) uphold the appeal without holding a hearing if the presiding officer determines that the undisputed facts of the appeal indicate that the appeal should be upheld; or

(c) hold a hearing on the appeal if there is a genuine issue of material fact or law that needs to be resolved in order to determine whether the appeal should be upheld.

(8)(a) If a hearing is held on an appeal, the presiding officer may:

(i) subpoena witnesses and compel their attendance at the presiding hearing;

(ii) subpoena documents for production at the presiding hearing;

(iii) obtain additional factual information; and

(iv) obtain testimony from experts, the person filing the review, representatives of the Department or other state agencies or, others to assist the presiding officer to decide on the review.

(b) The Rules of Evidence do not apply to an appeal hearing.

(c) A presiding officer will:

(i) record each hearing held on an appeal under this rule;

(ii) regardless of whether a hearing on an appeal is held under this rule, preserve all records and other evidence relied upon in reaching the presiding officer's written decision until the decision, and any appeal of the decision, becomes final; and

(d) A presiding officer's holding a hearing, considering an appeal, or issuing a written decision under this section does not affect a person's right to later question or challenge the presiding officer's jurisdiction to hold the hearing, consider the review, or issue the decision.

(9)(a) The deliberations of a presiding officer may be held in private.

(b) If the presiding officer is a public body, as defined in Section 52-4-103, the presiding officer will comply with Section 52-4-205 in closing a meeting for its deliberations.

(10)(a) A presiding officer must, within a reasonable time, issue a written decision regarding any appeal, unless the appeal is settled by mutual agreement.

(b) The decision will:

(i) state the reasons for the action taken; and

(ii) inform the appellant of the right to judicial or administrative appeal as provided in this rule;

(c) A person who issues a decision under Subsection R914-4-4(6) will mail, email, or otherwise immediately furnish a copy of the decision to the appellant.

(11) A decision described in this rule is effective until stayed or reversed on review.

(12) If the presiding officer does not issue the written decision regarding a protest within 30 calendar days after the day on which the protest was filed with the protest officer, or within a longer period as may be agreed upon by the parties, the protester may proceed as if an adverse decision had been received.

(13) A determination under this rule by the presiding officer regarding an issue of fact may not be overturned on a request for reconsideration unless the presiding officer's decision is arbitrary and capricious or clearly erroneous.

(14) An individual is not precluded from acting and may not be disqualified or required to be recused from acting, as a presiding officer because the individual also acted in another capacity during the valuation process.

 

R914-4-5. Request for Reconsideration.

(1) Within 20 days after the date a presiding officer issues a decision regarding any appeal, an appealing party may file a written request for reconsideration with the Division.

(2) A written request for consideration must state the specific reasons reconsideration is being requested.

(3) Filing a request for reconsideration is not a prerequisite for seeking judicial appeal of a presiding officer's order.

(4) The request for reconsideration must be filed with the Division following the same procedure set forth in subsection R914-4-3 on Initiating an Appeal.

(5)(a) The Director, or a person designated for that purpose, will issue a written order granting denying the request for reconsideration.

(b) If the Director or the person designated for that purpose does not issue an order within 20 days after the filing of the request, the request for reconsideration will be considered to be denied.

(c) If the Director, or a person designated for that purpose, issues a written order denying the request; or if 20 days passes after the filing of the request without an order granting or denying the request being issued, the appellant's administrative remedies will be considered exhausted.

 

R914-4-6. Judicial Review.

Appellants must seek judicial review in accordance with the requirements of Utah Code Title 63G, Chapter 4, Part 4.

 

KEY: aeronautics, corrective action orders, reviews

Date of Enactment or Last Substantive Amendment: 2019

Authorizing, and Implemented or Interpreted Law: 72-10-110(2)(d)(ii); 72-1-201(1)(h)

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