At its meeting on April 8, 2010, the Legislature’s Administrative Rules Review Committee directed staff to review all administrative rules for statements that incorporate materials by reference. The request is intended to identify rules for which a specific reference was not provided or rules that incorporate the “latest version” of the material.
The committee’s concern seemed to focus on the fact that open-ended or nonspecific incorporation has the effect of delegating lawmaking power to other people simply because the state incorporated a document by reference.
Fourteen years ago, after wrestling with the problems created by open-ended incorporation by reference provisions, Sen. LeRay McAllister, as Senate chair of the Administrative Rules Review Committee, sponsored S.B. 25 (1996) amending the Utah Administrative Rulemaking Act. Since 1996, the law (now at Subsection 63G-3-201(7)) has required a rule incorporating materials by reference to “state the date, issue, or version of the material being incorporated….”
So … if you draft an administrative rule that incorporates material by reference, make certain that you include a date, issue, or version along with the title of the material incorporated.