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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