Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                            H.B. 357
Approved for Filing: C. Williams 6                             1st Sub. (Buff)
          6 02-14-24 8:25 AM 6
                   Representative Cheryl K. Acton proposes the following substitute bill:
                        ADMINISTRATIVE RULES AMENDMENTS
                                      2024 GENERAL SESSION
                                          STATE OF UTAH
                               Chief Sponsor: Cheryl K. Acton
                             Senate Sponsor: Michael S. Kennedy
 6
 LONG TITLE
 General Description:
        This bill enacts provisions related to administrative rulemaking.
 Highlighted Provisions:
        This bill:
        < defines terms;
        < requires agencies to inform legislative committees of certain rules; and
        < requires the Office of Administrative Rules to create a list of certain rules in the
 Utah State Bulletin.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:                                                                    1st Sub. H.B. 357
 AMENDS:
        63G-3-102, as last amended by Laws of Utah 2021, Chapter 344
        63G-3-301, as last amended by Laws of Utah 2022, Chapter 443
        63G-3-402, as last amended by Laws of Utah 2022, Chapter 443
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     *HB0357S01*
       1st Sub. (Buff) H.B. 357                                                      02-14-24 8:25 AM
 Be it enacted by the Legislature of the state of Utah:
           Section 1. Section 63G-3-102 is amended to read:
           63G-3-102. Definitions.
           As used in this chapter:
           (1) "Administrative record" means information an agency relies upon when making a
 rule under this chapter including:
           (a) the proposed rule, change in the proposed rule, and the rule analysis form;
           (b) the public comment received and recorded by the agency during the public
 comment period;
           (c) the agency's response to the public comment;
           (d) the agency's analysis of the public comment; and
           (e) the agency's report of its decision-making process.
           (2) "Agency" means each state board, authority, commission, institution, department,
 division, officer, or other state government entity other than the Legislature, its committees, the
 political subdivisions of the state, or the courts, which is authorized or required by law to make
 rules, adjudicate, grant or withhold licenses, grant or withhold relief from legal obligations, or
 perform other similar actions or duties delegated by law.
           (3) "Bulletin" means the Utah State Bulletin.
           (4) "Catchline" means a short summary of each section, part, rule, or title of the code
 that follows the section, part, rule, or title reference placed before the text of the rule and serves
 the same function as boldface in legislation as described in Section 68-3-13.
           (5) "Code" means the body of all effective rules as compiled and organized by the
 office and entitled "Utah Administrative Code."
           (6) "Department" means the Department of Government Operations created in Section
 63A-1-104.
           (7) "Director" means the director of the office.
           (8) "Effective" means operative and enforceable.
           (9) "Executive director" means the executive director of the department.
           (10) "File" means to submit a document to the office as prescribed by the office.
           (11) "Filing date" means the day and time the document is recorded as received by the
 office.
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       02-14-24 8:25 AM                                                     1st Sub. (Buff) H.B. 357
        (12) "Interested person" means any person affected by or interested in a proposed rule,
 amendment to an existing rule, or a nonsubstantive change made under Section 63G-3-402.
        (13) "Office" means the Office of Administrative Rules created in Section 63G-3-401.
        (14) "Order" means an agency action that determines the legal rights, duties, privileges,
 immunities, or other interests of one or more specific persons, but not a class of persons.
        (15) "Person" means any individual, partnership, corporation, association,
 governmental entity, or public or private organization of any character other than an agency.
        (16) "Publication" or "publish" means making a rule available to the public by
 including the rule or a summary of the rule in the bulletin.
        (17) "Publication date" means the inscribed date of the bulletin.
        (18) "Register" may include an electronic database.
        (19) (a) "Rule" means an agency's written statement that:
        (i) is explicitly or implicitly required by state or federal statute or other applicable law;
        (ii) implements or interprets a state or federal legal mandate; and
        (iii) applies to a class of persons or another agency.
        (b) "Rule" includes the amendment or repeal of an existing rule.
        (c) "Rule" does not mean:
        (i) orders;
        (ii) an agency's written statement that applies only to internal management and that
 does not restrict the legal rights of a public class of persons or another agency;
        (iii) the governor's executive orders or proclamations;
        (iv) opinions issued by the attorney general's office;
        (v) declaratory rulings issued by the agency according to Section 63G-4-503 except as
 required by Section 63G-3-201;
        (vi) rulings by an agency in adjudicative proceedings, except as required by Subsection
 63G-3-201(6); or
        (vii) an agency written statement that is in violation of any state or federal law.
        (20) "Rule analysis" means the format prescribed by the office to summarize and
 analyze rules.
        (21) "Small business" means a business employing fewer than 50 persons.
        (22) "Substantial fiscal impact rule" means a proposed rule that has an anticipated cost,
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        1st Sub. (Buff) H.B. 357                                                        02-14-24 8:25 AM
 as described in Subsection 63G-3-301(8)(d), of at least $500,000 over a three-year period.
           [(22)] (23) "Substantive change" means a change in a rule that affects the application
 or results of agency actions.
           Section 2. Section 63G-3-301 is amended to read:
           63G-3-301. Rulemaking procedure.
           (1) An agency authorized to make rules is also authorized to amend or repeal those
 rules.
           (2) Except as provided in Sections 63G-3-303 and 63G-3-304, when making,
 amending, or repealing a rule agencies shall comply with:
           (a) the requirements of this section;
           (b) consistent procedures required by other statutes;
           (c) applicable federal mandates; and
           (d) rules made by the office to implement this chapter.
           (3) Subject to the requirements of this chapter, each agency shall develop and use
 flexible approaches in drafting rules that meet the needs of the agency and that involve persons
 affected by the agency's rules.
           (4) (a) Each agency shall file the agency's proposed rule and rule analysis with the
 office.
           (b) Rule amendments shall be marked with new language underlined and deleted
 language struck out.
           (c) (i) The office shall publish the information required under Subsection (8) on the
 rule analysis and the text of the proposed rule in the next issue of the bulletin.
           (ii) For rule amendments, only the section or subsection of the rule being amended
 need be printed.
           (iii) If the director determines that the rule is too long to publish, the office shall
 publish the rule analysis and shall publish the rule by reference to a copy on file with the office.
           (5) Before filing a rule with the office, the agency shall conduct a thorough analysis,
 consistent with the criteria established by the Governor's Office of Planning and Budget, of the
 fiscal impact a rule may have on businesses, which criteria may include:
           (a) the type of industries that will be impacted by the rule, and for each identified
 industry, an estimate of the total number of businesses within the industry, and an estimate of
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       02-14-24 8:25 AM                                                       1st Sub. (Buff) H.B. 357
 the number of those businesses that are small businesses;
           (b) the individual fiscal impact that would incur to a typical business for a one-year
 period;
           (c) the aggregated total fiscal impact that would incur to all businesses within the state
 for a one-year period;
           (d) the total cost that would incur to all impacted entities over a five-year period; and
           (e) the department head's comments on the analysis.
           (6) If the agency reasonably expects that a proposed rule will have a measurable
 negative fiscal impact on small businesses, the agency shall consider, as allowed by federal
 law, each of the following methods of reducing the impact of the rule on small businesses:
           (a) establishing less stringent compliance or reporting requirements for small
 businesses;
           (b) establishing less stringent schedules or deadlines for compliance or reporting
 requirements for small businesses;
           (c) consolidating or simplifying compliance or reporting requirements for small
 businesses;
           (d) establishing performance standards for small businesses to replace design or
 operational standards required in the proposed rule; and
           (e) exempting small businesses from all or any part of the requirements contained in
 the proposed rule.
           (7) If during the public comment period an agency receives comment that the proposed
 rule will cost small business more than one day's annual average gross receipts, and the agency
 had not previously performed the analysis in Subsection (6), the agency shall perform the
 analysis described in Subsection (6).
           (8) The rule analysis shall contain:
           (a) a summary of the rule or change;
           (b) the purpose of the rule or reason for the change;
           (c) the statutory authority or federal requirement for the rule;
           (d) the anticipated cost or savings to:
           (i) the state budget;
           (ii) local governments;
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        1st Sub. (Buff) H.B. 357                                                     02-14-24 8:25 AM
           (iii) small businesses; and
           (iv) persons other than small businesses, businesses, or local governmental entities;
           (e) the compliance cost for affected persons;
           (f) how interested persons may review the full text of the rule;
           (g) how interested persons may present their views on the rule;
           (h) the time and place of any scheduled public hearing;
           (i) the name and telephone number of an agency employee who may be contacted
 about the rule;
           (j) the name of the agency head or designee who authorized the rule;
           (k) the date on which the rule may become effective following the public comment
 period;
           (l) the agency's analysis on the fiscal impact of the rule as required under Subsection
 (5);
           (m) any additional comments the department head may choose to submit regarding the
 fiscal impact the rule may have on businesses; and
           (n) if applicable, a summary of the agency's efforts to comply with the requirements of
 Subsection (6).
           (9) (a) For a rule being repealed and reenacted, the rule analysis shall contain a
 summary that generally includes the following:
           (i) a summary of substantive provisions in the repealed rule which are eliminated from
 the enacted rule; and
           (ii) a summary of new substantive provisions appearing only in the enacted rule.
           (b) The summary required under this Subsection (9) is to aid in review and may not be
 used to contest any rule on the ground of noncompliance with the procedural requirements of
 this chapter.
           (10) A copy of the rule analysis shall be mailed to all persons who have made timely
 request of the agency for advance notice of the agency's rulemaking proceedings and to any
 other person who, by statutory or federal mandate or in the judgment of the agency, should also
 receive notice.
           (11) (a) Following the publication date, the agency shall allow at least 30 days for
 public comment on the rule.
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        02-14-24 8:25 AM                                                     1st Sub. (Buff) H.B. 357
         (b) The agency shall review and evaluate all public comments submitted in writing
 within the time period under Subsection (11)(a) or presented at public hearings conducted by
 the agency within the time period under Subsection (11)(a).
         (12) (a) Except as provided in Sections 63G-3-303 and 63G-3-304, a proposed rule
 becomes effective on any date specified by the agency that is:
         (i) no fewer than seven calendar days after the day on which the public comment
 period closes under Subsection (11); and
         (ii) no more than 120 days after the day on which the rule is published.
         (b) The agency shall provide notice of the rule's effective date to the office in the form
 required by the office.
         (c) The notice of effective date may not provide for an effective date before the day on
 which the office receives the notice.
         (d) The office shall publish notice of the effective date of the rule in the next issue of
 the bulletin.
         (e) A proposed rule lapses if a notice of effective date or a change to a proposed rule is
 not filed with the office within 120 days after the day on which the rule is published.
         (13) (a) Except as provided in Subsection (13)(d), [before an agency enacts a rule]
 when an agency proposes a substantial fiscal impact rule in the bulletin, the agency shall
 submit to the appropriations subcommittee and interim committee with jurisdiction over the
 agency the agency's proposed rule for review[, if the proposed rule, over a three-year period,
 has a fiscal impact of more than:].
         [(i) $250,000 to a single person; or]
         [(ii) $7,500,000 to a group of persons.]
         (b) An appropriations subcommittee or interim committee that reviews a rule
 submitted under Subsection (13)(a) shall:
         (i) before the review, directly inform the chairs of the Administrative Rules Review
 and General Oversight Committee of the coming review, including the date, time, and place of
 the review; and
         (ii) after the review, directly inform the chairs of the Administrative Rules Review and
 General Oversight Committee of the outcome of the review, including any recommendation.
         (c) An appropriations subcommittee or interim committee that reviews a rule submitted
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        1st Sub. (Buff) H.B. 357                                                   02-14-24 8:25 AM
 under Subsection (13)(a) may recommend to the Administrative Rules Review and General
 Oversight Committee that the Administrative Rules Review and General Oversight Committee
 not recommend reauthorization of the rule in the omnibus legislation described in Section
 63G-3-502.
        (d) The requirement described in Subsection (13)(a) does not apply to:
        (i) the State Tax Commission; [or]
        (ii) the State Board of Education[.]; or
        (iii) the Department of Environmental Quality.
        (14) (a) As used in this Subsection (14), "initiate rulemaking proceedings" means the
 filing, for the purposes of publication in accordance with Subsection (4), of an agency's
 proposed rule that is required by state statute.
        (b) A state agency shall initiate rulemaking proceedings no later than 180 days after the
 day on which the statutory provision that specifically requires the rulemaking takes effect,
 except under Subsection (14)(c).
        (c) When a statute is enacted that requires agency rulemaking and the affected agency
 already has rules in place that meet the statutory requirement, the agency shall submit the rules
 to the Administrative Rules Review and General Oversight Committee for review within 60
 days after the day on which the statute requiring the rulemaking takes effect.
        (d) If a state agency does not initiate rulemaking proceedings in accordance with the
 time requirements in Subsection (14)(b), the state agency shall appear before the legislative
 Administrative Rules Review and General Oversight Committee and provide the reasons for
 the delay.
        (15) (a) When an agency proposes a rule due to a federal requirement under Subsection
 (8)(c) in the bulletin, the agency shall submit to the appropriations subcommittee and interim
 committee with jurisdiction over the agency the agency's proposed rule for review.
        (b)