Today, the Office of the Federal Register (OFR) partially granted a petition for rulemaking by proposing to amend its incorporation by reference regulations.   The petition was filed in early 2012, shortly after the Administrative Conference adopted Recommendation 2011-5, Incorporation by Reference, by Professor Peter L. Strauss, a Senior Fellow of the Administrative Conference.  Last year, the Office of the Chair of the Administrative Conference submitted comments on the petition.

If finalized, the new rules would require agencies to secure “informal” OFR approval to publish a proposed rule that, if adopted, would incorporate extrinsic material by reference.  At this stage, an agency would be required to include in the preamble either a discussion of what it has done to ensure the reasonable availability “to interested parties” of the to-be-incorporated material or a summary of that material.  At the final rule stage, the discussion of reasonable availability would always be required in the preamble.

In its response to the petition, OFR also suggested that it will revise its Document Drafting Handbook to encourage agencies to implement relevant provisions of Recommendation 2011-5.  Chapter 6 of the handbook provides guidance to agencies seeking OFR’s approval to incorporate by reference in federal regulations.

Comments on the proposed rules are due December 31, 2013.

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