Archives Proposes Amendments to Incorporation by Reference Policy

by Shannon Allen

The National Archives and Records Administration (“NARA”) seeks comment on proposed amendments regulating the process for incorporated by reference (“IBR”) materials into the Code of Federal Regulations (“CFR”).  This notice of proposed rulemaking (“NPRM”) is in response to a petition to amend these regulations received by the Office of the Federal Register (“OFR”) on February 13, 2012.  

This NPRM proposes that agencies include additional details about the “materials incorporated by reference” into the “preambles of their rulemaking documents.”  In addition, the proposed amendments seek to require agencies to state in the preambles “a discussion of” actions taken to make certain the “materials are reasonably available to interested parties” or to “summarize the contents of the materials they wish to incorporate by reference.”

Specifically requested comments, include:

1. Whether "reasonably available" means materials should be for free to anyone online.  Would it create a digital divide by excluding people without internet access? 
2. Does “class of persons affected” need to be defined? If so, how should it be defined?
3. Should agencies bear the cost of making the material available for free online?
4. For example, how would this impact agencies' budget and infrastructure?
5. How would OFR’s review of proposed rules for IBR impact agency rulemaking and policy, given the additional time and possibility of denial of an IBR approval request at the final rule stage of the rulemaking?
6. Should OFR have the authority to deny IBR approval requests if the material is not available online for free?
7. The Administrative Conference of the United States recently issued a recommendation on IBR. 77 FR 2257 (January 17, 2012). In light of this recommendation, should the guidance on this topic be updated instead of amending the regulations?
8. Given that the petition raises policy rather than procedural issues; would the Office of Management and Budget (“OMB”) be a better placed to determine reasonable availability?
9. How would an extended IBR review period at both the NPRM and final rule stages impact agencies?

Other topics for comment include:

• Constitutional Issues.
• Copyright Issues.
• Outdated standards IBR'd into the CFR.
• What standards should be used as guidance not requirements?
• Concerns regarding the misuse of the IBR process.
• Indirect IBR of standards.
• International stance (e.g. trade imbalance, Export Administration Regulations, International Traffic in Arms Regulations).
• OFR mission.

Interested parties should submit comments by December 31, 2013, identified using the subject line of this document (Incorporation By Reference), by any of the following methods:

•  Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: Fedreg.legal@nara.gov. Include the subject line of this document in the subject line of the message (Incorporation By Reference).
• Mail: the Office of the Federal Register (NF), The National Archives and Records Administration, 8601 Adelphi Road, College Park, MD.
• Hand Delivery/Courier: Office of the Federal Register, 800 North Capitol Street NW., Suite 700, Washington, DC 20001.