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” .
Draft amendment to Rule R15-3. The draft is also available in PDF/A format.
R15. Administrative Services, Administrative Rules.
R15-3. Definitional Clarification of Administrative Rule.
R15-3-1. Authority, Purpose, and Definitions.
(1) This rule is authorized under Subsection 63G-3-402(1) which requires the division to administer the Utah Administrative Rulemaking Act, Title 63G, Chapter 3.
(2) This rule clarifies when rulemaking is required, and requirements for incorporation by reference within rules.
(3) Terms used in this rule are defined in Section 63G-3-102. In addition:
(a) “PDF/A” means an electronic document format defined by ISO 19005-1:2005 for using portable document format (PDF) for long-term archiving of electronic documents.
* * * * *
R15-3-3. Use of Incorporation by Reference in Rules.
(1) An agency incorporating materials by reference as permitted under Subsection 63G-3-201(7) shall comply with the following standards:
(a) [The rule shall state specifically that the cited material is “incorporated by reference.”
(b) ]If the material contains options, or is modified in its application, the options selected and modifications made shall be stated in the rule.
[(c)](b) If the incorporated material is substantively changed at a later time, and the agency intends to enforce the revised material, the agency shall amend its rule through rulemaking procedures to incorporate by reference any applicable changes as soon as practicable.
[(d)](c) [In accordance with Subsection 63G-3-201(7)(c), an]The agency shall describe substantive changes that appear in the materials incorporated by reference as part of the “summary of rule or change” in the rule analysis.
(2) [An agency shall ]In complying with Subsection 63G-3-201(7)(d), when an agency writes a rule that incorporates materials by reference, the agency shall:
(a) provide a copy of the materials to the division at the time the rule is filed so that the materials are received prior to the publication date; this copy shall be:
(i) a paper copy; or
(ii) a PDF/A compliant electronic file; and
(c) comply with copyright requirements when it provides the division a copy of material incorporated by reference and file a statement affirming such compliance and identifying the rule filing with which the material is associated.
(3) The division shall refuse to publish a rule, or accept a notice of effective date on a rule for which an agency has not complied with the requirement of Subsection 63G-3-201(7)(d) and this section.
* * * * *
KEY: administrative law
Date of Enactment or Last Substantive Amendment: [April 30, 2007]2011
Notice of Continuation: September 21, 2010
Authorizing, and Implemented or Interpreted Law: 63G-3-201; 63G-3-301; 63G-3-402