Incorporation by reference is a legal tool that allows an agency to take a standard published by another entity and make it an enforceable part of the agency's rule without reprinting the entire text in its rule. The factors to consider when deciding to incorporate material by reference include:
the statutory parameters;
the importance of the incorporated material to the rule;
the need to enforce standards as part of the rule; and
the availability of the incorporated material.
The Rulemaking Act permits agencies to incorporate certain types of materials by reference. However, the governor, by executive order, has mandated agencies to incorporate where appropriate (see Appendix G, Governor's Executive Order, 2/3/1986). The advantages of incorporating materials by reference include:
eliminating error that may be introduced when material is transcribed into rule format;
encouraging consistency in the state's implementation of the external requirements;
simplifying updates—the agency need only change a single date instead of retyping vast amounts of text; and
eliminating the expense of republishing material that is already publicly available.
The Rulemaking Act explicitly indicates what types of materials may be incorporated. Subsection 63-46a-3(7)(a) provides that four types of materials may be incorporated by reference:
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;
state agency implementation plans mandated by the federal government for participation in the federal program;
lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, and are available for public inspection; or
lists, tables, illustrations, or similar materials that the director determines are too expensive to reproduce in the administrative code.
If the material meets the statutory description, the rulewriter should consider incorporating that material by reference. However, since statute allows agencies to incorporate only certain types of materials, a rulewriter may not write segments of agency standards and procedures in an internal policy manual, and then merely incorporate the manual by reference. Prohibitions or regulating standards that fit the definition of a rule (Subsection 63-46a-3(2)), and that are unique to the agency, may not be incorporated by reference and must be included in rule in its full text.
enact an incorporation by following rulemaking procedures;
explicitly state that the material is “incorporated by reference”;
state the date, issue, or version of the material being incorporated;
describe substantive changes that appear in the materials incorporated as part of the “summary of rule or change” in the rule analysis;
define specifically what material is incorporated by reference and identify any agency deviations from it by following rulemaking procedures; and
maintain a complete and current copy of the referenced materials for public inspection at the agency and at the Division of Administrative Rules, while complying with copyright requirements.
When a rulewriter sends the Division a document that has been incorporated by reference, the document needs to be accompanied by the Incorporation by Reference form. [THIS FORM HAS BEEN SUPERSEDED BY THE NEW RULE ANALYSIS FORM IN eRules v. 2.]
The Rulemaking Act does not permit an agency to use open-ended incorporation statements. The courts have also invalidated prospective incorporations—statements that do not refer to a specific edition or source to which the public may refer. Therefore, the rulewriter may not use phrases like, “as amended” or “including future amendments.” Whenever there is a substantive change in the material incorporated by reference that the agency intends to enforce, the agency must incorporate the new edition by following rulemaking procedures.
Here are some examples of incorporation by reference statements.
Incorporating the Code of Federal Regulations
R999-11-1. Purpose and Authority.
This rule incorporates by reference 24 CFR 570 (April 1, 2005).
Incorporating the CFR and Changes Published in the FR
R999-2-16. Petitions to Amend This Rule to Exclude a Waste Produced at a Particular Facility.
(a) The requirements of 40 CFR 260.22 (1993), as amended by 58 FR 46040 are incorporated by reference with the following amendments: …
Incorporating Uniform Codes
R999-56-4. Specific Editions of Uniform Building Standards.
(1) The division incorporates by reference the following Uniform Building Standards…:
(a) the 1994 edition of the Uniform Building Code (UBC) promulgated by the International Conference of Building Officials; and …
Incorporating Materials with Agency Deviations
R999-13-1. Land Disposal Restrictions.
The division incorporates by reference the requirements as found in 40 CFR 268 (1994), including Appendices IV, V, VI, VII, VIII, IX, and X as amended by 59 FR 43496, 59 FR 47980, 59 FR 47982, 60 FR 242, and 60 FR 25540, with the exclusion of Sections 268.5, 268.6, 268.42(b), and 268.44 and with the following exceptions:
(a) Substitute “Board” for all federal regulation references made to “Administrator” or “Regional Administrator” except for 40 CFR 268.40(b).
(b) Substitute the words “plan approval” for all federal references made to “permit”.
(c) All references made to “EPA Hazardous Waste Number” will include P999, and F999.
(d) Substitute Utah Code Annotated, Title 19, Chapter 6 for all references to RCRA.
Incorporating List, Tables, Illustrations or Similar Materials
R999-14-5a. Coding Table.
This rule incorporates by reference the Department of Public Safety, Division of Driver License code violation tables, consisting of lists of violation codes published by the department as of November 1996. Copies of these coding tables are available at the division office and also at Division of Administrative Rules for public inspection.