Final Incorporation by Reference Rule Implements Recommendation 2011-5

Today, the Office of the Federal Register (OFR) published its final rule on incorporation by reference.  See Incorporation by Reference, 79 Fed. Reg. 66,267 (Nov. 7, 2014).  The Freedom of Information Act allows agencies to incorporate by reference into federal regulations extrinsic materials that are "reasonably available to the class of persons affected."  5 U.S.C. § 552(a)(1).  The law charges the Director of the Federal Register with the responsibility for approving all incorporations by reference.  Today's final rule modifies the procedural requirements agencies must meet to secure the Director's approval.

OFR's final rule is a significant step towards the implementation of Recommendation 2011-5, Incorporation by Reference.  The rule emphasizes that promulgating agencies have the primary obligation to ensure that incorporated materials are reasonably available to the public.  OFR urges agencies to work with copyright holders when necessary to achieve this goal.  Going forward, agencies will be required to include in the preamble of their rulemaking documents: (1) a discussion of how they have worked to make the incorporated materials reasonable available to interested parties; and (2) a summary of the incorporated material.  Paragraph 4 of Recommendation 2011-5 identifies factors that agencies should consider when determining what "reasonably available" means in the unique circumstances of each incorporating rule.

In addition to embracing the core principles of Recommendation 2011-5 with respect to the question of public access to incorporated materials, OFR's final rule gives effect to several other, more discrete provisions of the Recommendation.  Consistent with paragraph 8, OFR declined to take an approach that would encourage agencies to address the public access issue by confining incorporations by reference to non-binding guidance documents.  The final rule also sensibly retains the requirement that material incorporated by reference be technical in nature.  This is consistent with paragraph 15 of Recommendation 2011-5, which provides that agencies should clearly establish regulatory requirements in the text of their proposed and final rules, and use incorporation by reference only to provide technical detail.

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