Administrative Code

Virginia Administrative Code
4/18/2024

Part III. Adoption of Textual Matter by Incorporation by Reference

1VAC7-10-140. Incorporation by reference permitted.

A. A regulation may adopt textual matter by reference to all or any part of a publication or document. For the purposes of this part, a publication and a document are interchangeable. The material in the document becomes the text of the regulation and an enforceable part of the regulation.

B. The agency must comply with the provisions of 1VAC7-10-150 and 1VAC7-10-160 when incorporating a document by reference except as provided in 1VAC7-10-170.

C. Effective January 1, 2016, an agency may not adopt prospective changes to an incorporated document by referring to a future edition or revision of the document or by using "as updated," "as may be amended," "future editions," or similar language. When a document that an agency has incorporated by reference subsequently is modified by the publisher, the agency may adopt the modification but shall do so through a regulatory action. However, when an agency incorporates by reference provisions of the Code of Virginia, the Virginia Acts of Assembly, or the Virginia Administrative Code into a regulation, future amendments to the incorporated provisions are included unless other intent is specifically stated in the regulation.

D. Effective January 1, 2016, an agency may not incorporate one of its own documents by reference unless the agency establishes that the documents or circumstances are unique and highly unusual.

Statutory Authority

§ 2.2-4104 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 9, eff. January 1, 2016.

1VAC7-10-150. Filing requirements.

A. When an agency adopts textual matter in a regulation by reference to a document, the agency shall file a copy of the referenced document with the regulation submission package. The document shall be filed in its entirety, unless the registrar has approved a request for the document to be filed by descriptive statement as provided in 1VAC7-10-170. The agency shall also provide information as to where copies of the incorporated publications may be procured.

B. When an agency adopts textual matter by reference to Internet content, the agency shall file the Internet content with the registrar. The agency shall file a read-only electronic copy or a printed copy of the Internet content.

Statutory Authority

§ 2.2-4104 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 9, eff. January 1, 2016.

1VAC7-10-160. Regulation text.

When incorporating material by reference, an agency shall include in the regulatory text (i) a statement that the document is incorporated by reference; (ii) the complete name of the document; (iii) the effective, issue, revision, or publication date; (iv) the version or edition, if any; and (v) the publisher or entity that produced the document.

Statutory Authority

§ 2.2-4104 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 9, eff. January 1, 2016.

1VAC7-10-170. Exemptions from filing of documents adopted or incorporated by reference; requirements.

A. The requirements established in 1VAC7-10-150 and 1VAC7-10-160 do not apply to incorporation of textual matter by reference to material published in the Federal Register or the Code of Federal Regulations, or by reference to regulations of other Virginia agencies. Where such references are made, the regulatory text must contain a citation sufficient for accurate identification of the referenced material.

1. Where the material has been published in the Code of Federal Regulations, the agency must:

a. Include in the regulatory text the title, part or section, and the date of publication. Example: 40 CFR Part 260 (July 1, 2014 update) or 40 CFR §§ 260.1 through 260.11 (July 1, 2014 update); or

b. Include a section listing the applicability of the cited CFR text and stating that when a federal regulation is incorporated in the chapter, that regulation shall be as it exists and has been published on a certain date.

2. Where the referenced material has not been published in the Code of Federal Regulations but appears in the Federal Register, the agency must include in the regulatory text the volume, page, and date of the Federal Register. Example: 79 FR 264, January 2, 2014.

B. The registrar may exempt an agency from the requirement of filing the incorporated document in its entirety if such filing would be impractical or cause an undue hardship on the agency. The document shall be filed as directed by the registrar.

C. The agency shall request an exemption from this filing requirement by submitting a request to the registrar. The registrar will notify the agency whether the exemption is approved.

D. Even if exempted under subsections A and B of this section, an agency must maintain on file and make available to the public the full text of all materials adopted by reference.

Statutory Authority

§ 2.2-4104 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 9, eff. January 1, 2016.

Website addresses provided in the Virginia Administrative Code to documents incorporated by reference are for the reader's convenience only, may not necessarily be active or current, and should not be relied upon. To ensure the information incorporated by reference is accurate, the reader is encouraged to use the source document described in the regulation.

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