Recommendation 2011-5 – Incorporation by Reference addresses ways in which agencies publish rules that refer to standards or other materials that have been published elsewhere. The recommendation proposes ways to ensure that materials subject to incorporation by reference are reasonably available to the regulated community and other interested parties, to update regulations that incorporate by reference, and to navigate procedural requirements and drafting difficulties when incorporating by reference.
Citation: Admin. Conf. of the U.S., Recommendation 2011-5, Incorporation by Reference, 77 Fed. Reg. 2257 (Jan. 17, 2012).
Incorporation by reference allows agencies to comply with the requirement of publishing rules in the Federal Register to be codified in the Code of Federal Regulations (CFR) by referring to material published elsewhere.[1] The practice is first and foremost intended to—and in fact does—substantially reduce the size of the CFR. But it also furthers important, substantive regulatory policies, enabling agencies to draw on the...
In 2016, the Office of Management and Budget (OMB) revised Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities. In discussing the revisions to the Circular, OMB explained that “[t]he revised Circular provides a non-exclusive set of factors to help agencies assess the availability of specific standards for particular regulatory contexts . . . . [T]he basis of these factors for consideration is . . . [ACUS] Recommendation 2011-5 . . . .”
The Office of the Federal Register’s (OFR) regulation on incorporation by reference is fully consistent with the Recommendation and implements several provisions relating to “reasonable availability” to the public of incorporated material.
OFR’s IBR Handbook recognizes the Recommendation as a source of guidance for agencies that incorporate external materials by reference into regulations. It specifically directs agencies to consult the Recommendation when determining whether to engage in the practice and highlights the Recommendation’s suggestion in Recommendation 3 that agencies work with copyright holders to make read-only copies of incorporated material available online both during rulemaking and following promulgation.
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