Rulewriters will occasionally quote statute in rule, either because they believe it will add weight to the rule text, or because they want to demonstrate conclusively the authority to write a particular rule. But, quoting statute in rule carries risks. Do not quote statute in rule.
- It serves no legal purpose. There is no legal purpose served in repeating language that is already legally enforceable. Repetition does not add weight to a legal requirement.
- It creates the possibility of conflicting language. If statute is quoted in rule, the agency must exercise hyper-vigilance to ensure that it matches the language of the statute exactly. Additionally, after every session, someone must review the language again to verify that no changes have been made. Mismatched quotations result in conflicting language that may result in a challenge. Quoting statute also means that any time the legislature makes a change to the text of the statute, the agency must amend the rule to synchronize the texts.
- It is redundant. Quoting duplicates the same legal requirement in two codes when its appearance in one will suffice. Doing so imposes a time burden on careful readers who compare the repeated statutory language in rule to the language of the statute itself.
- It misses the point of what a rule is supposed to be. An administrative rule is an agency’s written statement that implements or interprets a state or federal legal mandate that has the effect of law (see Subsection 63G-3-102(16)(a)). An administrative rule is not a users’ manual.
- It may draw the agency into the regulatory oversight process. In the past, the Legislature’s Administrative Rules Review Committee has expressed concerns over quoting statutes in rules and has advised agencies against the practice.
- It unnecessarily increases the volume of rules. This, in turn, creates political fodder for those otherwise unhappy with the function an agency performs.
This list serves to highlight the potential problems. The same risks exist when quoting court opinions or executive orders. These documents stand on their own. Instead of quoting statute (or executive orders or court opinions) the agency should instead provide cross references.
Questions may be referred to Ken Hansen, 801-538-3764.