The Utah Administrative Rulemaking Act requires that, when an agency incorporates materials into its rules, the agency must provide a copy of those materials to the Division. Formerly, the Division made an exception to this by purchasing its own subscription to the Code of Federal Regulations (CFR).
After contacting department rules coordinators, asking for feedback, and receiving no concerns or objections, the Division has decided to terminate its subscription to the CFR. This means that an agency incorporating a federal regulation from a CFR dated January 2008 or later will need to provide a paper copy of the regulation, just like it does with any other materials incorporated by reference.
This decision was made because of the free availability of the CFR online, the increasing cost associated with subscriptions to the microfiche CFR edition, and the apparent decline in CFR incorporations (for the Bulletins published 01/01/2007 through 12/01/2007, agencies have filed 1,447 rules; of those, 35 or 2%, of the rules incorporate the CFR).
Agencies may access the CFR free of charge from http://www.gpoaccess.gov/cfr/index.html. The Government Printing Office makes two versions — text and PDF — available online. The Division recommends that agencies print the PDF version. The PDF version is formatted like the printed CFR and it will typically require less paper.
Direct your questions about this decision to Ken Hansen (538-3777).
Recently, one of the Division’s editors took a call from a citizen. He said he had called an agency looking for information about a specific requirement. The citizen said he was given a rule number, the name of a publication that had been incorporated by reference in the rule, and told to call the Division of Administrative Rules to find it. The Division responded to this call and made available to the citizen the material requested.
Since 1985, the Rulemaking Act has provided basically the same requirement regarding the responsibly for providing access to rules:
(1) Each agency shall:
(a) maintain a current version of its rules; and
(b) make it available to the public for inspection during its regular business hours.
*****
(7)(a) Each agency may enact a rule that incorporates by reference:
(i) all or any part of another code, rule, or regulation . . . ;
*****
(d) The agency shall maintain a complete and current copy of the referenced material available for public review at the agency and at the division. (Section 63-46a-3; emphasis added)
The underlying expectation is that both the agency and the Division of Administrative Rules must be able to provide access to current rules and incorporated materials. The Division appreciates your efforts to respond to requests you receive about your agency’s rules.
Subsection 63-46a-3(7) permits an agency to incorporate different types of materials by reference in rules. These materials include:
(i) all or any part of another code, rule, or regulation that has been adopted by a federal agency, an agency or political subdivision of this state, an agency of another state, or by a nationally recognized organization or association;
(ii) state agency implementation plans mandated by the federal government for participation in the federal program;
(iii) lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, and are available for public inspection; or
(iv) lists, tables, illustrations, or similar materials that the director determines are too expensive to reproduce in the administrative code.
One item for which the Legislature has not granted permission for an agency to incorporate is a Utah statute. This makes sense. There is no need to incorporate a statute into a rule because it is already law that applies in Utah. Therefore, a reference to a Utah statute is adequate.
Questions about incorporating materials into rule may be directed to Ken Hansen at 801-538-3777.
