The Utah Administrative Rulemaking Act permits an agency to incorporate materials by reference into its administrative rules.  When an agency incorporates materials by reference, the statute also requires that the agency provide the Division of Administrative Rules with a copy of the material incorporated.

For years, the Division has directed agencies to provide the Division a paper copy of materials incorporated by reference.  With budgets as they are, the Division has received several requests from agencies asking us to accept electronic copies.

Accepting electronic copies of materials incorporated by reference presents several challenges:
- How do we control the material so that we can assure that it has not been altered from the version that was submitted with the rule?
- How do we assure that we will be able to access/read the document in 5 , 10, or 50 years?
- How do we assure that members of the public will be able to view/read these documents without requiring them to purchase software?
- How do we address copyright issues?

After doing some research, the Division has drafted an amendment to one of its administrative rules.  This draft would continue to permit an agency to submit incorporated materials in paper format.  It also would permit an agency to submit incorporated materials electronically in PDF/A format.  PDF/A documents can be created using Adobe Acrobat.  PDF/A is an international standard for long-term archiving of electronic documents (ISO 19005-1:2005).  These documents can be read using any number of freely available PDF readers.

The draft amendment also requires that materials incorporated by reference be provided to the Division before the rule’s publication in the Bulletin.  This is intended to address a problem the Division has experienced trying to track down materials.

The draft amendment appears after the jump.

Since agencies are anxious to stop providing paper copies, the Division requests feedback by Monday, April 18, 2011.  Comment may be submitted to “rulesonline” at “utah.gov” .

Read more »

In 1983, the Federal District Court for the District of Utah addressed, as one of its issues, something related to the open-ended incorporation by reference issue discussed earlier.  In Utah League of Insured Savings Associations v. Utah (555 F.Supp. 664 (D.Utah, 1983)) the court considered instances where  the legislature makes another document the law of the state when it does not yet exist.

[S]ection 7-7-41 [--a state statute--] in effect grants to federal entities the power to make law for the State of Utah.  As the section reads, no action by any state official or entity is required for these new rights, powers, privileges, benefits and immunities to be effective; they are operational solely by federal action.  The broad provisions of section 7-7-41 grant to the federal government the power to make law for the State of Utah.

The constitutionality of conveying this state legislative power to Congress or other federal entities has not been specifically decided in Utah, though the question has been determined in other states.  Even so, it appears Utah law would support the same conclusion.  As early as 1932 the Utah Supreme Court in State v. Goss, 79 Utah 559, 11 P.2d 340, 341-42 (Utah 1932), delineated the constitutional problem:

The legislative power of the state is by the Constitution vested in the Legislature, and, under circumstances therein specified, in the people of the state, and such legislative power may not by the Legislature be delegated to other agencies, except as expressly directed or permitted by the Constitution.  Where, however, a certain policy has been prescribed by statute, the power to make rules and regulations to carry such policy into effect may be conferred upon or delegated to an administrative agent such as a board or commission.

Quoting from State v. Chicago, Milwaukee and St. P. Ry. Co., 38 Minn. 281, 37 N.W. 782, 787, the court pointed out:

The difference between the power to say what the law shall be, and the power to adopt rules and regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is apparent.  The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring and authority or discretion to be exercised under and in pursuance of the law.

Recent Utah Supreme Court cases would adhere to Goss‘ conclusion.  In IML Freight, Inc. v. Ottosen, 538 P.2d 296 (Utah 1975), the Utah Supreme Court cited with approval the language in New Mexico ex rel. McCullouch v. Ashby, 73 N.M. 267, 387 P.2d 588 (1963) that:

It is well [settled] that the legislature may not delegate authority to a board or commission to adopt rules or regulations which abridge, enlarge, extend or modify the statute creating the right or imposing the duty.

Salt Lake City v. International Association of Firefighters, 563 P.2d 786, 790 (Utah 1977), concludes similarly that Article I, Section 2 and Article VI, Section 1 of the Utah Constitution would be violated if the legislature surrendered its legislative authority to another decision-making body.

As the Utah Legislature has no power to prescribe how powers under section 7-7-41 should be given or controlled, this court concludes that section 7-7-41 violates Articles I and VI as being an unconstitutional delegation of legislative authority.  The Utah Legislature cannot delegate to the federal government its constitutional duty to make laws for the State of Utah.  Thus, section 7-7-41 is hereby declared null and void insofar as it is purported to supersede sections 57-15-1 to -10. (Utah League of Insured Savings Associations v. Utah, 555 F. Supp. 664, 673-4 (D. Utah 1983); emphasis added.)

In 1996, S.B. 25 amended the Utah Administrative Rulemaking Act to require an agency incorporating materials by reference to provide the “the date, issue, or version of the material being incorporated….”

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.