Utah Department of Transportations Power to Make Rules
The powers of the government of the State of Utah shall be divided into three distinct departments:
And no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted. Utah Const. art. V, 1.
In adopting section 24.107, UDOT (Utah Department of Transportation) engaged in the legislative function of rulemaking. UDOT contends that, as an executive branch agency, it was precluded from doing so by article V, section 1.
This argument fails, however, because UDOT is not a part of the executive branch for purposes of article V, section 1. the constitution itself defines those "persons" who are deemed to be a part of the Executive Department, and that definition does not include administrative agencies.
See Utah Const. art. VII, 1. Addressing this question in State v. Gallion, 572 P.2d 683 (Utah 1977), we held as follows:
Since the inhibitions of the Article V, Section 1, are directed toward specific "persons," there is nothing to restrain the legislative department from creating administrative bodies to exercise legislative functions, viz., rule making.
Although administrative bodies are nominally designated a part of the executive branch, they do not fall within the Constitutional definition of the Executive Department and the prohibition of Article V, Section I does not apply thereto.
Id. at 687. We see no reason, and UDOT provides none, for departing from this interpretation. Therefore, we hold that article V, section 1 does not limit UDOT's authority, as an administrative body, to make rules.
UDOT further contends that its rulemaking authority is limited by article VI, section 1 of the Utah Constitution, which, in pertinent part, vests "the Legislative power of the State . . . in . . . the Legislature of the State of Utah . . . ." Utah Const. art. VI, 1. Under this argument, even if UDOT is not constitutionally a part of the executive branch for purposes of article V, section 1, it is, nevertheless, precluded by article VI, section 1 from exercising legislative power because it is not a part of the legislature either. the first question that arises in this regard is whether the legislative power of rulemaking was properly delegated by the legislature to UDOT.
Article VI, section 1 does restrict the ability of the legislature to delegate legislative functions to administrative agencies. See Gallion, 572 P.2d at 687 (noting that while article V, section 1 does not "proscribe the delegation of legislative power, . . . under Article VI, Section 1, there are limitations in this regard . . .").
Because the constitution vests the legislative power in the legislature, administrative agencies may only effect policy mandated by statute and cannot exercise a sweeping power to create whatever rules they deem necessary. See State v. Goss, 79 Utah 559, 11 P.2d 340, 341-44 (Utah 1932).
Accordingly, "where the legislature delegates to an administrative agency power to make rules and regulations, such delegation must be accompanied by a declared policy outlining the field within which such rules and regulations may be adopted." Bird & Jex Co. v. Funk, 96 Utah 450, 85 P.2d 831, 834 (Utah 1939).
The question then becomes whether the legislature expressed a policy that adequately directed UDOT in enacting rule 933-1-1.
Section 72-1-201 of the Utah Code "creates the Department of Transportation which shall: . . . (8) in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, make policy and rules for the administration of the department, state transportation systems, and programs".
Utah Code Ann. 72-1-201 (Supp. 2000). Thus, the legislature specifically granted UDOT the power to enact administrative rules.
An agency "rule" is defined as "an agency's written statement that . . . (i) is explicitly or implicitly required by state or federal statute or other applicable law; (ii) has the effect of law; (iii) implements or interprets a state or federal legal mandate; and (iv) applies to a class of persons or another agency." Utah Code Ann. 63-46a-2(16)(a) (1997).
Together, these sections evince a legislative intent that UDOT enact rules to comply with federal mandates.
And more specifically, section 72-1-208(2) of the Utah Code requires that UDOT, "with the approval of the governor, shall cooperate with the federal government in all federal-aid projects and with all state departments in all matters in connection with the use of the highways." Utah Code Ann. 72-1-208(2) (Supp. 2000).
In so cooperating, the legislature allows UDOT to "incorporate by reference . . . regulations that have been adopted by a federal agency . . . ." Utah Code Ann. 63-46a-3(7)(a) (Supp. 2000).
Read together, these statutes demonstrate a clear delegation by the legislature to UDOT of rulemaking authority, as well as a legislative policy directing UDOT to comply with federal mandates for federal-aid projects.
UDOT's wholesale adoption of the regulations implementing the Uniform Act complies with the federal mandate that, in order to receive federal financial assistance, a state agency must either:
(1) give assurances to the federal government that it will comply with the Uniform Act and the federal regulations implementing the Uniform Act or (2) certify with the Federal Highway Administration that it will act according to State laws that are equivalent to the Uniform Act in purpose and effect. See 49 CFR 24.4(a)(1) (1995) (requiring assurances); 49 CFR 24.601-.602 (1995) (discussing the certification process).
In light of the clear legislative policy of compliance with federal mandates in such a situation, the UDOT rule is not in conflict with Article VI, section 1, of the Utah Constitution.
The power to make such a rule was properly delegated by the legislature to UDOT.