The Office of the Federal Register is currently taking comments on a petition to amend its regulations governing the approval of agency requests to incorporate by reference in federal regulations. See 77 Fed. Reg. 11414 (Feb. 27, 2012). At issue is the tension between: (1) the government’s responsibility to ensure reasonable access to standards and other materials incorporated into proposed and final rules; and (2) standard development organizations’ claims that protecting copyright in the materials is necessary to fund standard development activities.

The petition was submitted on February 13, 2012 by Columbia Law Professor Peter L. Strauss, a Senior Fellow of the Administrative Conference, and signed by 19 other law professors, practitioners, and interested experts. It urges the Federal Register to amend “1 CFR part 51, ‘Incorporation by Reference’ to reflect the changed circumstances brought about by the information age.” The referenced regulations were last amended in 1982, before the electronic revolution and the movement for greater transparency in government. See 47 Fed. Reg. 34108 (Aug. 6, 1982).

This effort comes on the heels of the Administrative Conference’s adoption of Recommendation 2011-5: Incorporation by Reference (). It seeks to further the transparency goals of the recommendation through different means, arguing that the Federal Register should take greater “responsibility for shaping and administering the criterion of reasonable availability,” and should do so beginning at the proposed rule stage. The submission included proposed regulatory text intended to improve public access to incorporated materials. The Federal Register has published the petition and posted the proposed regulatory text in the FDMS Docket. It is requesting comment on several specific issues raised in the petition.

The comment period is currently scheduled to close on March 28, 2012. To submit comments, visit www.regulations.gov and search for “NARA 12-0002.” You can also submit comments by visiting the Federal Register’s website  and clicking on the green button that says “Submit a Formal Comment.” Either way, your comments will appear on www.regulations.gov.

Further information on Recommendation 2011-5 and the complex issues raised by the practice of incorporation by reference can be found on the Incorporation by Reference project page.