[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Proposed Rules]
[Pages 60784-60798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24217]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / 
Proposed Rules  

[[Page 60784]]



OFFICE OF THE FEDERAL REGISTER

1 CFR Part 51

[Docket Number: OFR-13-0001]
RIN 3095-AB78


Incorporation By Reference

AGENCY: Office of the Federal Register, National Archives and Records 
Administration.

ACTION: Partial grant of petition, notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: On February 13, 2012, the Office of the Federal Register 
received a petition to amend our regulations governing the approval of 
agency requests to incorporate material by reference into the Code of 
Federal Regulations. We agree with the petitioners that our regulations 
need to be updated, however the petitioners proposed changes to our 
regulations that go beyond our statutory authority. In this document, 
we propose that agencies seeking the Director's approval of their 
incorporation by reference requests add more information regarding 
materials incorporated by reference to the preambles of their 
rulemaking documents. We propose that they set out in the preambles a 
discussion of the actions they took to ensure the materials are 
reasonably available to interested parties or summarize the contents of 
the materials they wish to incorporate by reference.

DATES: Comments must be received on or before December 31, 2013.

ADDRESSES: You may submit comments, identified using the subject line 
of this document, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include the subject line of 
this document in the subject line of the message.
     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.
    Docket materials are available at the Office of the Federal 
Register, 800 North Capitol Street NW., Suite 700, Washington, DC 
20001, 202-741-6030. Please contact the persons listed in the FOR 
FURTHER INFORMATION CONTACT section to schedule your inspection of 
docket materials. The Office of the Federal Register's official hours 
of business are Monday through Friday, 8:45 a.m. to 5:15 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amy Bunk, Director of Legal Affairs 
and Policy, or Miriam Vincent, Staff Attorney, Office of the Federal 
Register, at [email protected], or 202-741-6030.

SUPPLEMENTARY INFORMATION: The Office of the Federal Register (OFR or 
we) published a request for comments on a petition to revise our 
regulations at 1 CFR part 51.\1\ The petition specifically requested 
that we amend our regulations to define ``reasonably available'' and to 
include several requirements related to the statutory obligation that 
material incorporated by reference (IBR) be reasonably available. Our 
original request for comments had a 30 day comment period. Since we 
received requests from several interested parties to extend the comment 
period, we extended the comment period until June 1, 2012.\2\
---------------------------------------------------------------------------

    \1\ 77 FR 11414 (February 27, 2012).
    \2\ 77 FR 16761 (March 22, 2012).
---------------------------------------------------------------------------

    Our current regulations require that agencies provide us with the 
materials they wish to IBR. Once we approve an IBR request, we maintain 
the IBR'd materials in our library until they are accessioned to the 
National Archives and Records Administration (NARA) under our records 
schedule \3\. NARA then maintains this material as permanent Federal 
records.
---------------------------------------------------------------------------

    \3\ http://www.archives.gov/federal-register/cfr/ibr-locations.html last visited March 26, 2013.
_____________________________________-

    We agree with the petitioners that our regulations need to be 
updated, however the petitioners proposed changes to our regulations 
that go beyond our statutory authority. The petitioners contended that 
changes in technology, including our new Web site 
www.federalregister.gov, along with electronic Freedom of Information 
Act (E-FOIA) reading rooms, have made the print publication of the 
Federal Register unnecessary. They also suggested that the primary, 
original reason for allowing IBR was to limit the amount of material 
published in the Federal Register and Code of Federal Regulations 
(CFR). The petitioners argued that with the advent of the Internet and 
online access our print-focused regulations are out of date and 
obsolete. The petition then stated that statutory authority and social 
development since our current regulations were first issued require 
that material IBR'd into the CFR be available online and free of 
charge.
    The petition further suggested that our regulations need to apply 
at the proposed rule stage of agency rulemaking projects and that the 
National Technology Transfer and Advancement Act of 1995 (NTTAA) and 
the Office of Management and Budget's (OMB) Circular A-119 distinguish 
between regulations that require use of a particular standard and those 
that ``serve to indicate that one of the ways in which a regulation can 
be met is through use of a particular standard favoring the use of 
standards as non-binding ways to meet compliance.'' \4\ In addition, 
the petition argued that Veeck v. S. Bldg. Code Cong. Int'l, 293 F.3d 
791 (5th Cir. 2002) casts doubt on the legality of charging for 
standards IBR'd. Finally, the petition stated that in the electronic 
age the benefits to the federal government are diminished by electronic 
publication as are the benefits to the members of the class affected if 
they have to pay high fees to access the standards. Thus, agencies 
should at least be required to demonstrate how they tried to contain 
those costs.
---------------------------------------------------------------------------

    \4\ NARA-12-0002-0002.
---------------------------------------------------------------------------

    The petitioners proposed regulation text to enact their suggested 
revisions to part 51. The petitioners' regulation text would require 
agencies to demonstrate that material proposed to be IBR'd in the 
regulation text was available throughout the comment period: in the 
Federal Docket Management System (FDMS) in the docket for the proposal 
or interim rule; on the agency's Web site; or readable free of charge 
on the Web site of the voluntary standards organization that created it 
during the comment

[[Page 60785]]

period of a proposed rule or interim rule. The petition suggested 
revising 51.7--``What publications are eligible''--to limit IBR 
eligibility only to standards that are available online for free by 
adding a new (c)(3) that would ban any standard not available for free 
from being IBR'd. It also appeared to revise 51.7(a)(2) to include 
documents that would otherwise be considered guidance documents. And, 
it would revise 51.7(b) to limit our review of agency created materials 
to whether the material is available online. The petition would then 
revise 51.9 to distinguish between required standards and those that 
could be used to show compliance with a regulatory requirement. 
Finally, the petition would add a requirement that, in the electronic 
version of a regulation, any material IBR'd into that regulation would 
be hyperlinked.
    The petitioners want us to require that: (1) All material IBR'd 
into the CFR be available for free online; and (2) the Director of the 
Federal Register (the Director) include a review of all documents 
agencies list in their guidance, in addition to their regulations, as 
part of the IBR approval process. We find these requirements go beyond 
our statutory authority. Nothing in the Administrative Procedure Act 
(APA) (5 U.S.C. chapter 5), E-FOIA, or other statutes specifically 
address this issue. If we required that all materials IBR'd into the 
CFR be available for free, that requirement would compromise the 
ability of regulators to rely on voluntary consensus standards, 
possibly requiring them to create their own standards, which is 
contrary to the NTTAA and the OMB Circular A-119.
    Further, the petition didn't address the Federal Register Act (FRA) 
(44 U.S.C. chapter 15), which still requires print publication of both 
the Federal Register and the CFR, or 44 U.S.C. 4102, which allows the 
Superintendent of Documents to charge a reasonable fee for online 
access to the Federal electronic information, including the Federal 
Register.\5\ The petition suggested that the Director monitor proposed 
rules to ensure the material proposed to be IBR'd is available during 
the comment period of a proposed rule. Then, once a rule is effective, 
we monitor the agency to make sure the IBR'd materials remain available 
online. This requirement that OFR continue monitoring agency rules is 
well beyond the current resources available to this office.
---------------------------------------------------------------------------

    \5\ See also 44 U.S.C. 4101.
---------------------------------------------------------------------------

    As for the petition's limitation on agency-created material, the 
Freedom of Information Act (FOIA), at 5 U.S.C. 552(a), mandates 
approval by the Director of material proposed for IBR to safeguard the 
Federal Register system. Thus, OFR regulations contain a provision that 
material IBR'd must not detract from the legal and practical attributes 
of that system.\6\ An implied presumption is that material developed 
and published by a Federal agency is inappropriate for IBR by that 
agency, except in limited circumstances. Otherwise, the Federal 
Register and CFR could become a mere index to material published 
elsewhere. This runs counter to the central publication system for 
Federal regulations envisioned by Congress when it enacted the FRA and 
the APA.\7\
---------------------------------------------------------------------------

    \6\ See also 44 U.S.C. 4101.
    \7\ 47 FR 34107 (August 6, 1982).
---------------------------------------------------------------------------

    Finally, the petition didn't address the enforcement of these 
provisions. Agencies have the expertise on the substantive matters 
addressed by the regulations. To remove or suspend the regulations 
because the IBR'd material is no longer available online would create a 
system where the only determining factor for using a standard is 
whether it is available for free online. This would minimize and 
undermine the role of the Federal agencies who are the substantive 
subject matter experts and who are better suited to determine what 
standard should be IBR'd into the CFR based on their statutory 
requirements, the entities they regulate, and the needs of the general 
public. Additionally, the OFR's mission under the FRA is to maintain 
orderly codification of agency documents of general applicability and 
legal effect.\8\ As set out in the FRA and the implementing regulations 
of the Administrative Committee of the Federal Register (ACFR) (found 
in 1 CFR chapter I), only the agency that issues the regulations 
codified in a CFR chapter can amend those regulations. If an agency 
took the IBR'd material offline, OFR could only add an editorial note 
to the CFR explaining that the IBR'd material was no longer available 
online without charge. We could not remove the regulations or deny 
agencies the ability to issue or revise other regulations. Revising our 
regulations as proposed by the petition would simply add requirements 
that could not be adequately enforced and thus, likely wouldn't be 
complied with by agencies.
---------------------------------------------------------------------------

    \8\ 44 U.S.C. 1505 and 1510.
---------------------------------------------------------------------------

    In this proposed rule, we are proposing to require that if agencies 
seek the Director's approval of an IBR request, they must set out the 
following information in the preambles of their rulemaking documents: 
discussions of the actions the agency took to make the materials 
reasonably available to interested parties or; summaries of the content 
of the materials the agencies wish to IBR.

Discussion of Comments

Authority of the Director To Issue Regulations Regarding IBR

    One commenter suggested that the OFR does not have the proper 
authority to amend the regulations in 1 CFR part 51. The commenter 
argued that because the FRA creates the ACFR and grants it rulemaking 
authority to issue regulations to carry out the FRA, it is the ACFR and 
not the Director who has the authority to amend these regulations.\9\ 
The commenter made this claim relying on Sec.  1505(a)(3), which 
requires publication of documents or classes of documents that Congress 
requires be published in the Federal Register.
---------------------------------------------------------------------------

    \9\ See, 44 U.S.C. 1506.
---------------------------------------------------------------------------

    We disagree with the commenter's analysis of these provisions. 
While the FRA does require publication of those documents, the FOIA 
does not require that documents IBR'd be published in the Federal 
Register. Section 552(a) states that persons cannot be adversely 
affected by documents that did not publish in the Federal Register but 
were required to be published unless the person has actual notice of 
the document. This section goes on to make an exception for documents 
IBR'd if they are reasonably available to the class of persons affected 
by the matter and approved by the Director. Under this section, once 
these criteria are met, material approved for IBR is ``deemed published 
in the Federal Register.'' Thus, persons affected by the regulation 
must comply with material IBR'd in the regulation even though the IBR'd 
document is not set out in the regulatory text. Because section 552(a) 
specifically states that the Director will approve agency requests for 
IBR and material IBR'd is not set out in regulatory text, the Director 
has the sole authority to issue regulations governing the IBR-approval 
request procedures. We have maintained this position since the IBR 
regulations were first issued in the 1960's.
    The regulations on the IBR approval process were first issued by 
the Director in 1967 and found at 1 CFR part 20.\10\ Even though this 
part was within the ACFR's CFR chapter, the preamble of the document 
states ``the Director of the Federal Register hereby establishes 
standards and procedures governing his approval of instances of 
incorporation

[[Page 60786]]

by reference.'' \11\ And, while these regulations appear in the ACFR's 
CFR chapter, this final rule was issued and signed solely by the 
Director. These regulations were later republished, along with the 
entire text of Chapter I, by the ACFR in 1969; \12\ however the ACFR 
stated that the republication contained no substantive changes to the 
regulations. In 1972, the ACFR proposed a major substantive revision of 
Chapter I.\13\ In that proposed rule, the ACFR proposed removing the 
IBR regulations from Chapter I because ``part 20 . . . is a regulation 
of the Director of the Federal Register rather than the Administrative 
Committee.'' \14\ In that same issue of the Federal Register, the 
Director issued a proposed rule proposing to establish a new Chapter II 
in Title 1 of the CFR that governed IBR approval procedures.\15\ These 
proposals were not challenged on this issue, so the final rules 
removing regulations from the ACFR chapter and establishing a new 
chapter for the Director were published on November 4, 1972 at 23602 
and 23614, respectively.
---------------------------------------------------------------------------

    \10\ 32 FR 7899 (June 1, 1967).
    \11\ Id.
    \12\ 34 FR 19106 at 19115, December 2, 1969.
    \13\ 37 FR 6804 (April 4, 1972).
    \14\ Id.
    \15\ 37 FR 6817 (April 4, 1972).
---------------------------------------------------------------------------

    We specifically requested comments on nine issues; we will address 
the comments we received to each question.

1. Does ``reasonably available'' a. Mean that the material should be 
available: i. for free and ii. to anyone online?

    A majority of the commenters agreed that reasonably available means 
for free to anyone online but provided no additional comment on this. 
Several of these commenters seemed to agree with the general principle 
of access (as stated in the procedural requirements set out in various 
Federal statutes), specifically that any interested persons should be 
able to participate in informal notice and comment rulemaking by 
commenting on the standards an agency intends to IBR into its 
regulations, but didn't provide more specific details. Many commenters 
also agreed with the petitioners' contention that changes in technology 
and decreased costs of publication have made the print publication of 
the Federal Register unnecessary.
    The commenters who were against defining reasonably available 
expressed concerns that current technology might make it easier to 
publish material online but did not change intellectual property rights 
or the substantial costs associated with developing standards. Several 
standards development organizations (SDOs), along with others, 
commented that ``reasonably available'' means that these materials are 
made available through a variety of means that may include appropriate 
compensation to the developer of the standard.
    Another commenter agreed with the petitioners because its members 
are subject to enforcement actions that rely on standards IBR'd into 
the regulations. These standards play a critical role in its members' 
obligations because the standards define when members may face fines or 
disqualification. Thus, it is critical that they have access to the 
standards in part so that they can better comply with the regulations 
and can provide some oversight of the SDOs making these organizations 
more accountable for the standards.
    While we understand the concerns of this commenter regarding 
possible enforcement actions, we do not believe that there is one 
solution to the access issue. Regulated entities, who may face 
enforcement actions that lead to the loss of a license, and their trade 
associations should work directly with the agencies issuing regulations 
to ensure that all regulated entities and their representatives have 
access to the content of materials IBR'd. OFR staff do not have the 
experience to determine how access works best for a particular 
regulated entity or industry.
    One comment stated that charging a fee for access to material IBR'd 
prevents the poor from knowing the law. It stated that standards should 
cost the same amount as the Federal Register, which it said is free. It 
went on to state that having the material available for inspection at 
the agency or OFR imposed insurmountable barriers on the poor who live 
far from the District of Columbia. It also argued that 29 U.S.C. 794 
requires agencies to make electronic materials accessible to those with 
disabilities, so not providing IBR'd materials for free online was 
inconsistent with the Rehabilitation Act.\16\ Finally, this comment 
suggested that if the material were not free, OFR would need to set a 
dollar figure for the materials that ensured they were available to 
everyone, including the poor.
---------------------------------------------------------------------------

    \16\ The Rehabilitation Act ``mandates only that services 
provided non-handicapped individuals not be denied [to a disabled 
person] because of he is handicapped.'' Lincoln Cercpac v. Health 
and Hospitals Corp., 920 F. Supp. 488, 496 (S.D.N.Y. 1996), citing 
Flight v. Gloeckler, et al., 68 F.3d 61, 63, (2d Cir. 1995) and 
Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir. 1990).
---------------------------------------------------------------------------

    The daily Federal Register is not universally free. Section 1506(5) 
of the FRA authorizes the ACFR to set subscription rates for the 
Federal Register and other publications. Currently, a complete yearly 
subscription, that includes indexes, is $929.00. While GPO does not 
charge for online access to the Federal Register or to other federal 
government publications, including the CFR, Congress authorized the 
Superintendent of Documents to charge for online access to GPO 
publications. 44 U.S.C. 4101 requires the Superintendent of Documents, 
under the direction of the Public Printer, to maintain an electronic 
directory of Federal information and provide a system of electronic 
access to Federal publications, including the Congressional Record and 
the Federal Register, distributed by the Government Printing 
Office.\17\ Section 4102 allows the Superintendent of Documents to 
``charge reasonable fee for use of the directory and the system of 
access provided under section 4101.'' Paragraph (b) of this section 
states that the fees charged must be set to recover ``the incremental 
cost of dissemination of the information'' with the exception of the 
depository libraries, for electronic access to federal electronic 
information, including the Federal Register.\18\ While the 
Superintendent of Documents has chosen not to charge for electronic 
access to the daily Federal Register, this section does indicate that 
the Congress understands that there are costs to posting and archiving 
materials online and that recovering these costs is not contrary to 
other Federal laws, including the FRA and the APA.\19\
---------------------------------------------------------------------------

    \17\ See H.R. Rep. No. 108 May 25, 1993, H.R. REP. 103-108
     GOVERNMENT PRINTING OFFICE ELECTRONIC INFORMATION ACCESS 
ENHANCEMENT ACT OF 1993
     Mr. FORD.
     Mr. President, I am pleased today to introduce with the senior 
Senator from Alaska Mr. STEVENS the Government Printing Office 
Electronic Information Access Enhancement Act of 1993. This 
legislation will greatly enhance free public access to Federal 
electronic information.
    The bill requires the Superintendent of Documents at the 
Government Printing Office to provide an online CONGRESSIONAL RECORD 
and Federal Register free to depository libraries and at the 
incremental costs of distribution to other users. The bill allows 
other documents distributed by the Superintendent of Documents to be 
added online as practicable and permits agencies to voluntarily 
disseminate their electronic publications through the same system.
    I believe this bill goes a long way toward ensuring that 
taxpayers have affordable and timely access to the Federal 
information which they have paid to generate.
    1993 WL 67458, 139 Cong. Rec. S2779-02, 1993 WL 67458.
    \18\ See, 44 U.S.C. 4102(b).
    \19\ One commenter also contends that charging for access would 
violate the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and 
the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 
et seq.). Both of those statutes require that agencies mitigate the 
effect of regulations on small businesses but do not suggest that 
agencies can only issue regulations with no cost to small 
businesses. Similarly, the goal of the Unfunded Mandates Reform Act 
of 1995 (UMRA), Public Law 104-4, is to prevent the Federal 
government from imposing a financial burden on state, local, and 
tribal governments. It does not suggest that agencies can only issue 
regulations without a cost of compliance.

---------------------------------------------------------------------------

[[Page 60787]]

    Congress required that within one year of enactment (January 2013) 
the Pipeline and Hazardous Materials Safety Administration (PHMSA) no 
longer IBR voluntary consensus standards into its regulations unless 
those standards have been made available free of charge to the public 
on the Internet.\20\ Congress has not extended this requirement to all 
materials IBR'd by any Federal agency into their regulations. In fact, 
Congress has instructed the Consumer Product Safety Commission to use 
specific ASTM standards, which are not available for free.\21\ Thus, we 
disagree with the petitioners and the commenters who argue that Federal 
law requires that all IBR'd standards must be available for free 
online. By placing the requirement on PHMSA not to IBR standards that 
are not available free of charge on the Internet (and on CPSC to IBR 
standards that are not available free of charge), Congress rightfully 
places the burden on the subject matter expert to work with the SDOs to 
provide access to the standards these subject matter experts believe 
need to be IBR'd.
---------------------------------------------------------------------------

    \20\ Section 24 of the Pipeline Safety, Regulatory Certainty, 
and Job Creation Act of 2011 (Pub. L. 112-90).
    \21\ For example, 15 U.S.C. 2056b.
---------------------------------------------------------------------------

    One commenter also cited various Supreme Court and other lower 
Federal courts to further support their claim that IBR'd materials 
should be free online \22\ by suggesting charging for access to these 
materials violates the APA. This commenter claimed that requiring 
interested parties to pay for materials an agency proposes to IBR in a 
notice of proposed rulemaking (NPRM) denies commenters the ability to 
fully participate in the rulemaking process because they can't learn 
the content of the standards without paying a fee. Further, this 
commenter claimed that because the APA allows interested parties to 
petition the government to amend regulations the IBR materials must 
remain free online while the regulation is effective. Thus, the APA 
requires that any material IBR'd must be available for free to be 
considered ``reasonably available.'' However, the cases that the 
commenter cited to support this claim, both civil and criminal, dealt 
with instances where the government proactively prevented access, in 
some instances by denying access to court hearings and, in another, by 
not disclosing scientific data relied on during a rulemaking, for 
example. IBR can be distinguished from these cases because the 
government is not prohibiting access to the materials. These materials 
may not be as easily accessible as the commenter would like, but they 
are described in the regulatory text in sufficient detail so that a 
member of the public can identify the standard IBR'd into the 
regulation. OFR regulations also require that agencies include 
publisher information and agency contact information so that anyone 
wishing to locate a standard has contact information for the both the 
standard's publisher and the agency IBRing the standard.
---------------------------------------------------------------------------

    \22\ See, for example Portland Cement v. Rukelshaus, 486 F.2d 
375 (D.C. Cir 1973) and United States v. Nova Scotia Food Products 
Corp., 568 F.2d 240 (2d Cir. 1977). In all of these cases, the 
government actively banned persons from a court proceeding or 
withheld information from the docket of an agency rulemaking. In 
these instances, the government actively prohibited access to a 
hearing or to information. This can be distinguished from IBR in 
that the government does disclose the relevant information regarding 
the standard it just may not provide free access to it.
---------------------------------------------------------------------------

b. Create a digital divide by excluding people without Internet access?

    Almost all commenters stated that no digital divide would be 
created because people without Internet access could go to a public 
library to access the standards online. Some commenters suggested that 
requiring print copies be available in libraries and other facilities 
would solve the digital divide problem. A couple of commenters stated 
that there was no digital divide because at least 60% of Americans have 
Internet access. A few commenters suggested that a digital divide was 
not the problem--our outdated regulations and the fact that some of the 
material is only available at the OFR was the real issue. One commenter 
suggested that a digital divide would be created if online access to 
standards was in a read-only format because someone reading the 
material at the library couldn't print the standard to review at home 
or ask someone to bring it to their home so they could examine the 
standard if they couldn't get to a library.
    Our proposed revisions to the IBR approval regulations would 
maintain the current process of agencies maintaining a copy for public 
inspection and providing a copy of the standard to the OFR, while 
adding the requirement that agencies set out, in the preamble of the 
proposed and final rules, how they addressed access issues and made the 
material reasonably available. This prevents a digital divide by 
providing interested commenters the information to contact the agency 
directly to find out how to access the standard, whether it is online 
or accessible at an agency's facility close to the commenter.

2. Does ``class of persons affected'' need to be defined? If so, how 
should it be defined?

    Whether or not commenters agreed with the petitioner, most believed 
that ``class of persons affected'' did not need to be defined. Some 
felt that the term included ``everyone'' or ``anyone interested.'' One 
group said it didn't need to be defined because it includes anyone who 
has standing to challenge the rule or intervene in a rulemaking 
proceeding. Most commenters stated that ``class of persons affected'' 
didn't need to be defined because it can change depending on the 
specific rulemaking and agencies involved, thus a definition will fail 
because it is either too broad to be meaningful or too restricted to 
capture a total class.
    Some commenters suggested that various entities were within the 
class, for example: consumer groups because they play an important role 
in ensuring that the standards are sufficiently protective of the 
consumer health and welfare; and SDOs because they are impacted when an 
agency IBRs their standards.
    Another commenter stated that ``affected persons'' in Sec.  552(a) 
of the APA includes more persons than those who are the direct subject 
of the regulation. To support this claim, the commenter referenced 5 
U.S.C. 702 (the APA's judicial review provision) \23\ to allege that 
Sec.  552(a)'s reasonably available provision is broader than Sec.  702 
and includes anyone who may have a stake in agency action. Thus, the 
class of persons affected extends beyond those who must comply with the 
regulation.
---------------------------------------------------------------------------

    \23\ The commenter also cites Clarke v. Securities Industry 
Ass'n, 479 U.S. 388 (1987) and Thompson v. North American Stainless, 
131 U.S. 863 (2011). These Supreme Court cases dealt with who is 
within the zone of interest under federal banking laws and Title VII 
of the U.S. Code.
---------------------------------------------------------------------------

    Two commenters suggested definitions. One of these commenters 
suggested that ``class of persons affected,'' ``means a business 
entity, organization, group, or individual who either: (i) Would be 
required to comply with the standard after, or if, it is IBR'd; (ii) 
would be benefitted from the standard's IBR'd into a federal 
regulation; (iii) needs to review and/or analyze the materials proposed 
to be IBR'd and/or being relied upon by a Federal agency in a 
regulatory proceeding, including (but not limited to) a proposed 
rulemaking, agency guidance, or similar agency

[[Page 60788]]

publication.'' \24\ The other suggested a 2-prong definition so that 
during the NPRM stage of the rulemaking ``class of persons affected'' 
would include anyone who wants to comment on the proposal, but during 
the final rule stage of the rulemaking the definition would refer 
primarily to ``those who have a need to know the standards to which 
their conduct will be held.'' \25\
---------------------------------------------------------------------------

    \24\ See NARA-12-0002-0122.
    \25\ See NARA-12-0002-0009.
---------------------------------------------------------------------------

    We did not propose a definition in this NPRM because we share the 
concerns of the commenter who worried that defining this phrase would 
create differentiation and may encourage the formation of a complicated 
secondary bureaucracy. We are also concerned that any definition will 
fail because it is either too broad to be meaningful or too restricted 
to capture a total class. Thus, we are not proposing a definition so 
that agencies maintain the flexibility to determine who is within the 
class of persons affected by a regulation or regulatory program on a 
case-by-case basis to respond to specific situations.

3. Should agencies bear the cost of making the material available for 
free online?

    When an SDO creates a standard, it expends resources which are 
separate from the actual expense of publication and distribution. We 
lack the knowledge and expertise to understand all of the costs 
involved with standard development, but we do acknowledge that those 
costs exist. The SDO can bear the cost of making its standard available 
for free, the agency can bear the cost by compensating the SDO for the 
lost sales, or industry and individuals can bear the cost by purchasing 
copies of the standard.
    Many commenters addressed this issue solely from a technology 
stand-point. They argued that agencies already have scanners, servers, 
and Web sites, so scanning, storing, and posting files online would 
result in a negligible cost. Other commenters suggested that this was a 
tangential issue and that there were other options available to recover 
the costs, but didn't elaborate on those other options. It's arguably 
true that the technological (and publication) costs are continually 
decreasing, but these comments addressed only the cost of making 
something available online and did not address costs associated with 
making the standard available for free.
    Other commenters suggested some complex ways for the agencies or 
the SDOs to recoup the cost of making the standards free online, 
including creating a new tax on SDOs whose standards are purchased in 
order to comply with regulations, and having SDOs design a per-use fee, 
in addition to royalties, so that individuals could pay a small fee to 
just access a standard but would have to pay royalties to actually use 
it. Amending the tax code and creating a new business model for SDOs 
are beyond the scope of the petition and outside our regulatory 
authority.
    Most individuals (those not responding on behalf of an SDO, 
industry, or trade group) felt that agencies should bear the cost. One 
person felt that agencies should bear the cost of making standards free 
and online because if standards are not free, our government is not 
transparent. Others felt that this was a basic role of government and 
noted that we already pay taxes, implying that citizens shouldn't have 
to also pay for standards. One commenter asserted that interested 
persons with legitimate interest can't afford the cost of purchasing 
access, so agencies should provide free access, in the interests of 
reducing costs and burdens.
    Transparency does not automatically mean free access. It is the 
long-standing policy of the Federal government to recoup its costs. OMB 
Circular A-25 was first issued in 1959 and then revised in 1993. Among 
its stated objectives is to ``allow the private sector to compete with 
the Government without disadvantage in supplying comparable services, 
resources, or goods where appropriate.'' It also notes that ``a user 
charge . . . will be assessed against each identifiable recipient for 
special benefits derived from Federal activities beyond those received 
by the general public.'' \26\ An implied intent is to reduce the costs 
and burdens on taxpayers by not making them pay extra for something 
they don't need.
---------------------------------------------------------------------------

    \26\ http://www.whitehouse.gov/omb/circulars_a025#5 last 
visited June 7, 2013.
---------------------------------------------------------------------------

    A common theme throughout the comments from industry groups and 
individuals was the idea that SDOs would be willing to negotiate with 
the government for a bulk discount for licensing. However, the SDO 
comments noted that the licensing fee would still be substantial and 
would necessarily result in increased budgets and increased strain on 
taxpayers. Another common theme throughout these comments was the idea 
that the SDOs derive significant, sometimes intangible, benefits from 
having their work IBR'd into a regulation and those benefits more than 
offset the cost of developing the standards themselves. Some of these 
benefits include increased name-recognition and trust, increased 
revenue from additional training opportunities, and an increase in the 
demand for standards. We don't have the knowledge or expertise to have 
an opinion on this issue but believe that agencies and SDOs will 
continue to work together on this issue.
    Several individuals and trade groups felt that if agencies had to 
bear the cost, that would ``maximize incentives to bargain over 
licensing agreements'' and encourage ``judicious use'' of an agency's 
rulemaking authority to ease the burden on small businesses.\27\ 
However, agencies are already directed to take into account the impact 
a rulemaking will have on small businesses, including an assessment of 
the costs involved, by various Federal statutes and Executive Orders. 
After making that assessment, agencies must then determine which 
standard, if any, is required.
---------------------------------------------------------------------------

    \27\ See, for example, NARA-12-0002-0098.
---------------------------------------------------------------------------

    The OFR is a procedural agency. We do not have the subject matter 
expertise (technical or legal) to tell another agency how they can best 
reach a rulemaking decision. Further, we do not have that authority. 
Neither the FRA nor the FOIA authorizes us to review proposed and final 
rulemaking actions for substance. We agree that agencies should 
consider many factors when engaging in rulemaking, including assessing 
the cost and availability of standards. So, we are proposing to require 
agencies to either explain why material is reasonably available and how 
to get it or to summarize the pertinent parts of the standard in the 
preamble of both proposed and final rules.
    Several SDOs commented that if the standards had to be freely 
available, then the government should bear the cost, but implied that 
industry and individuals should continue to bear the cost as needed. 
They noted that they would lose more than just the sales revenue from 
the standards if they had to bear the cost, including potential reduced 
value of membership and potential degradation to the value of standards 
and publications. Further, without compensation, creation of new 
standards would stop because the costs of procuring them for free would 
be prohibitively high resulting in an unsustainable business model.
    One interest group felt that our question automatically assumed 
that the cost to an agency would be significant. It argued that SDOs 
would be able to make standards available like a digital lending 
library which would mitigate the costs. They offered an example of the 
American Petroleum Institute (API)

[[Page 60789]]

making certain standards freely available in response to the 2010 oil 
spill in the Gulf of Mexico (Gulf oil spill).\28\
---------------------------------------------------------------------------

    \28\ See NARA-12-0002-0092.
---------------------------------------------------------------------------

    We note that API did not offer to make all of its IBRed standards 
available. So, we cannot infer that API is making this a general 
practice or that we can apply this situation generally across all SDOs. 
And, as several other commenters noted, shifting the cost burden to 
agencies would result in the entire burden of the standards development 
process being borne by taxpayers. We can take this example, however, as 
evidence that agencies and SDOs do work together to choose the best 
solution for a particular situation.
    One group asserted that since the Federal government bears the cost 
of making all Federal regulations available for free online, it should 
also make all IBR'd standards free and online. However, as we've 
discussed elsewhere in this petition, the Government Printing Office 
has the authority to charge for online access and it already charges 
for subscriptions to the paper Federal Register and CFR, so the Federal 
government does not have an obligation to bear the cost of making all 
regulations available for free online.
    Several commenters suggested that we allow agencies to limit free 
Internet access only to parties that would suffer an undue burden if 
they were required to pay the going rate for private standards. These 
suggestions are impractical. They could create differentiation and 
encourage the formation of a complicated secondary bureaucracy, which 
we have touched on already.
    As discussed, the OFR is a procedural agency and we publish 
documents from hundreds of Federal agencies. We would have neither the 
technological resources nor the staff to make sure agencies were making 
such a distinction, nor are we in the position to continually monitor 
outside Web sites. We wouldn't take steps to prevent such a 
determination, but have no authority to require it or enforce such a 
requirement.
    One individual suggested that since standards organizations are 
non-profit entities they should provide their standards for free. 
Another asserted that the SDOs were already rewarded for their work 
since they draft standards on behalf of government or industry. One 
person implied that the government was already paying the SDOs to 
develop the standards.
    Many SDOs are non-profit organizations, but not all are. Even if 
all SDOs were non-profit organizations, we don't have the authority to 
require that they give away assets, products, or services. Further, 
most SDOs develop standards in response to industry or member needs; 
they are not employed by the Federal government and very few, if any, 
draft standards at the direction of the Federal government, and even 
then, only in very limited and specific circumstances.
    One SDO noted that the current Federal policy reflects a decision 
that regulated industry and individuals should bear costs of standards 
and that businesses are the intended users of certain standards. It 
added that most businesses already accept the cost of certain standards 
as a ``recognized, accepted, and tax-deductible cost of doing 
business.'' The SDO added that since the cost to business is not 
exorbitant but the cost would be ``exorbitant'' to the Federal 
government, ``imposing cost to taxpayers would be misguided.'' \29\
---------------------------------------------------------------------------

    \29\ NARA-12-0002-0123.
---------------------------------------------------------------------------

    We choose to leave the burden on the agencies and their subject 
matter experts to work with the SDOs to provide access to the standards 
these subject matter experts believe need to be IBR'd. They continue to 
have the burden, but they also continue to have the flexibility to come 
up with the best solution for a particular situation.
    One industry group asserted that agencies should bear the cost, but 
that the cost would not be significant because the Federal government 
could exercise its right under the Takings Clause of the Fifth 
Amendment for any copyrighted material it wished to use. This comment 
is outside the scope of this petition for rulemaking, as we discuss in 
section 10.

4. How would this impact agencies' budget and infrastructure, for 
example?

    Several individuals replied that there would be minimal or no 
impact since all agencies should already have a web presence and 
document management systems.\30\ Other commenters concluded that there 
was no evidence that agencies would have increased expense when 
providing standards for free online.
---------------------------------------------------------------------------

    \30\ Again, these commenters focused only on the costs involved 
with posting a document and not with making it free.
---------------------------------------------------------------------------

    Many more commenters (individuals, industry groups, and SDOs) all 
agreed that there would be a significant impact to an agency's budget. 
One individual noted that the costs could be ``enormous and threaten 
the viability of regulatory programs.'' \31\ If agencies chose not to 
use SDO material, they could revert to developing government-unique 
standards. Several other commenters disputed that option, noting that 
forcing an agency to hire subject matter experts and develop the 
expertise it lacks runs counter to OMB Circular A-119. Further, 
agencies might need additional IT support staff, contract management 
staff, and administrative staff to meet the new demands for access.
---------------------------------------------------------------------------

    \31\ Again, these commenters focused only on the costs involved 
with posting a document and not with making it free.
---------------------------------------------------------------------------

    It seems clear that, if agencies must bear the burden to make 
material free online, and since most material is not currently free, 
then agency budgets would have to increase to make the material free. 
It is unclear if, or how, agency infrastructure would be impacted or 
how much budgets would need to increase.
    Several other commenters noted that the budgetary impact should be 
irrelevant. If an agency chooses to use a standard, then it has to meet 
all of its legal and financial responsibilities. Another commenter 
added that if an agency didn't want to IBR material, it could simply 
republish the material in the regulation in the Federal Register.
    While we agree that it should be an agency decision to use or not 
to use a standard, based on a variety of factors, agencies cannot 
simply republish material. The Federal Register and CFR have 
substantial limitations on what can be published. For example, we 
cannot publish in color, so any standard that relies on color could not 
be published, regardless of the copyright status.\32\ Also, 1 CFR 
51.7(c) states that material published in the Federal Register cannot 
be IBR'd. So if one agency chose to republish material rather than IBR 
it, no other agency would be able to IBR that material.
---------------------------------------------------------------------------

    \32\ See, for example 1 CFR 51.7(b).
---------------------------------------------------------------------------

5. How would OFR 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?

    Several commenters suggested that OFR review at the proposed rule 
stage would create substantial delays in the already long agency 
informal rulemaking process. Some suggested that OFR does not have the 
authority to review proposed rules because we are not subject matter 
experts in the areas regulated by other federal agencies. One commenter 
stated that if OFR were to circumvent the development of rules by

[[Page 60790]]

agencies with the statutory expertise and obligation, OFR would 
essentially drive the development of those rules which is not part of 
its mission. Another suggested that OFR review of NPRMs would also 
create a disincentive for agencies to use voluntary consensus 
standards. Other commenters suggested that our review of NPRMs was 
unnecessary because the SDOs use consensus development platforms that 
allow resolution of stakeholder concerns.
    Another commenter stated that while OFR is already required to 
review IBR requests at the NPRM stage under 5 U.S.C. 552(a)(1)(E), we 
need to issue clear rules so that IBR review would not delay 
publication of the NRPM and so that agencies will see a reduced risk 
that their request will be denied.
    We received a comment that stated OFR review at the NPRM stage may 
be constructive if it were limited to ensuring the availability of 
documents for public comment. Another stated that without adequate IBR 
review, agencies that failed to ensure that IBR'd standards were 
reasonably available were likely to face noncompliance and costly 
litigation. We agree with these comments. Even though a substantive 
review of IBR'd materials referenced in a proposed rule is beyond our 
authority and resources, OFR does have the authority to review NPRMs to 
ensure our publication requirements are met. We have not reviewed IBR'd 
material in NPRMs for approval because agencies may decide to request 
approval for different standards at the final rule stage based on 
changed circumstances, including public comments on the NPRM, requiring 
a new approval at the final rule stage. Or, agencies could decide to 
withdraw the NPRM. In this document, we propose to review agency NPRMs 
to ensure that the agency provides either: an explanation of how it 
worked to make the proposed IBR'd material reasonably available to 
commenters or; a summary of the proposed IBR'd material. This would not 
unduly delay publication of agency NPRMs and does not go beyond OFR's 
statutory authority.
    At least two commenters suggested that the petition does not 
require or suggest review at the NPRM stage. These commenters asserted 
that this review isn't needed because their NPRM text requires agencies 
to demonstrate in their draft final rules that the IBR'd standard was 
available online during the comment period. Further, agencies would 
know that they can only expect approval if commenters had access to the 
proposed IBR'd material during the comment period. Thus, the burden on 
OFR would be reduced because we would not have to continue with case-
by-case determinations of ``reasonable availability.'' Another 
commenter suggested OFR should automatically grant approval when 
proposed IBR'd materials are posted on Web sites that archive and 
authenticate, so there should be no delay in approval.
    These suggestions imply that OFR should rubber stamp agency IBR 
approval requests as long as the agency states it provided the 
materials online. We can only carry out the intent of the petition if 
we review the NPRMs to make sure the proposed IBR'd materials are 
available online for free or verify that the proposed IBR'd material is 
actually online during the comment period. To adequately ensure that 
the proposed IBR'd proposed materials are online during the comment 
period, OFR would need to verify that fact during the comment period to 
effectively enforce this requirement. Adding a requirement that 
agencies need to make proposed IBR'd materials available online during 
the NPRM stage will not ensure that agencies actually follow that 
requirement; we need to have some way to verify compliance. Thus, in 
this NPRM, we are proposing to review agency NPRMs to ensure that the 
agency provides an explanation of how it worked to make the material it 
proposes to IBR reasonably available to commenters or to provide a 
summary of the proposed IBR'd material.

6. Should OFR have the authority to deny IBR approval requests if the 
material is not available online for free?

    Of the commenters who felt that we should redefine ``reasonably 
available'' as meaning free and online, most agreed that we should also 
then deny requests if the IBR'd material is not available online for 
free. At least one group felt that we shouldn't deny a request but that 
instead we should negotiate an agreement between the agency and the SDO 
that would make the standard available for free and online. And, one 
commenter felt that OMB should also have the authority to deny requests 
if IBR'd material was not free and online.\33\ One commenter felt that 
we should refuse to publish final rules that didn't have a link to the 
online IBR'd material. Another implied that if an agency established 
good cause for using a standard that wasn't free and online, we 
couldn't deny the request for IBR approval.
---------------------------------------------------------------------------

    \33\ As noted elsewhere, the Federal Register Act gives sole 
approval authority to the Director of the Federal Register.
---------------------------------------------------------------------------

    Other commenters were concerned that if we restricted agencies to 
this requirement, we would be put in the ``untenable position of 
supervising Federal standards policy.'' \34\ They also noted that this 
could place OFR in the middle of a contentious fight over copyright 
limitations. We agree.\35\ As discussed elsewhere, our authority is 
limited to procedural and publication issues. We do not have the 
authority to direct another agency on substantive rulemaking issues, 
including IBR. Our proposed regulatory changes would require agencies 
to describe how the IBR'd material is reasonably available, with free 
and online being but one option.
---------------------------------------------------------------------------

    \34\ NARA-12-0002-0123.
    \35\ We discuss copyright concerns in more detail in section 10.
---------------------------------------------------------------------------

    Several commenters recommended we adopt new and very complex 
regulatory schemes so that we wouldn't immediately deny IBR'd material 
that wasn't free and online but that we would make sure it eventually 
became available, even if not free and online.\36\
---------------------------------------------------------------------------

    \36\ One plan would require that we oversee negotiations between 
the agency and SDO and make sure that the SDO was negotiating in 
good faith. Then, if the material could still not be made available 
online for free, we would create and maintain a fair use library of 
material that we had not approved for IBR but that the agency wanted 
to enforce through actual notice. Under a second plan, we would 
first just recommend that agencies use material that is free and 
online, then we would give priority review to requests to IBR 
material that was free and online, and finally, after 10 years, we 
would deny any request to incorporate material that wasn't freely 
available online.
---------------------------------------------------------------------------

    Not only would some of these new duties be outside the scope of our 
statutory authority, we do not have the resources or the expertise to 
implement and carry out these schemes.

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 we update our guidance on this topic instead of 
amending our regulations?

    Some commenters felt that we shouldn't update either our guidance 
or our regulations. Of the commenters who argued that we should use our 
regulations to require that IBR'd material be available for free and 
online, about half saw no point in also updating our guidance and the 
other half didn't object. A small number of commenters asserted that we 
should not update our Document Drafting Handbook (DDH) because it's not 
a policy document and we don't set Federal government policy.
    The ACUS Recommendations didn't suggest that we develop policy for 
the Federal government regarding IBR. As

[[Page 60791]]

the name indicates, these are actions or considerations that agencies 
are recommended to think about when determining what, if any, material 
would be needed for IBR. We see no problem with updating our DDH with 
some of the recommendations to give agencies another resource or 
reminder on IBR best practices and procedures.

8. Given that the petition raises policy rather than procedural issues, 
would OMB be better placed to determine reasonable availability?

    Some commenters felt that we need to define ``reasonable 
availability'' and that OMB should have no role in this process, citing 
the FOIA. Others thought that we should work in concert with OMB to 
determine ``reasonable availability.'' A third group asserted that OMB 
should set policy, noting that it already has in OMB Circular A-119.
    As we've already discussed, requiring that agencies only use 
material that is free and online could effectively bar them from using 
material their subject matter experts have decided is the best option. 
So, that change would have significant and immediate policy 
implications. In response to question 7, commenters already noted that 
OFR does not set policy for the Federal government. In fact, OMB has 
the role of policy-maker. We have neither the authority nor the 
expertise to determine what material is appropriate to IBR into a 
rulemaking. OMB and the other agencies should work together to set 
policy that best meets their needs.

9. How would an extended IBR review period at both the NPRM and final 
rule stages impact agencies?

    Many commenters raised the same issues in response to question 9 as 
they did in their responses to question 5. Some concluded there would 
be no impact since we would not need additional time to review either 
NPRMs or final rules because the IBR'd material is either available or 
it's not. Others suggested that our review would slow the process of a 
rulemaking, which would have detrimental effect and add levels of 
unnecessary complication. Some suggested that an extended IBR review 
period would diminish many of the benefits associated with the use of 
standards that are IBR'd. One commenter stated that OFR review would 
have a chilling effect on agencies' willingness to IBR voluntary 
standards in support of regulatory actions, which would undermine 
Federal law and policy, set forth in the NTTAA and OMB Circular A-119.
    Another commenter believed that OFR approval of IBRs should be 
expeditious and involve limited review. This commenter recommended that 
where there is an approved method for public access, OFR review should 
normally occur in 3 days not 20 and that agencies should be allowed to 
state that all future editions are IBR'd with some type of 
administrative approval. This commenter further stated that ``because 
the FRA is nothing more than a reporting statute, the Director should 
delay or reject an agency filing only to promote clarity, authenticity, 
and--in the case of IBR--public availability.'' \37\ Therefore, 
according to this commenter OFR should summarily approve IBR requests 
of materials that are posted on archival Web sites.
---------------------------------------------------------------------------

    \37\ See NARA-12-0002-0118.
---------------------------------------------------------------------------

    To the extent that one commenter suggested that we completely 
abandon our current regulations we disagree. Our current regulations, 
while issued 30 years ago, provide the foundations for transparency by 
requiring detailed information for the standard, including the title, 
date, revision, and publisher, be set out in the regulatory text. 
Without this basic information set out in the regulatory text no one 
could be sure which standard was actually IBR'd in a regulation. It 
wouldn't matter what standards were available online if it weren't 
clear which standard was IBR'd. Simply updating regulations by some 
type of administrative notice and then adding an editorial note to the 
CFR would not provide a means of orderly codification as required by 
the FRA and 1 CFR chapter 1. Therefore, we decline to propose this 
suggestion as a means of updating IBR references. Instead, our NPRM 
adds a requirement that agencies provide an explanation in the 
preambles of both their proposed and final rules that discusses how the 
IBR materials were made reasonably available (which could have been a 
summary of the IBR'd material in the NPRM) along with complying with 
the current regulations set out in part 51. This added requirement will 
not greatly increase the burden on OFR resources while providing 
interested parties more information on how agencies are working to 
ensure the IBR'd materials are reasonably available.

10. Other Issues

a. Constitutional Issues.
b. Copyright Issues.
c. Outdated standards IBR'd into the CFR.
d. Standards should be used as guidance not requirements.
e. Concerns regarding the misuse of the IBR process.
f. Indirect IBR of standards.
g. International stance--trade imbalance, Export Administration 
Regulations, International Traffic in Arms Regulations.
h. OFR mission.
i. Miscellaneous suggestions.
a. Constitutional Issues
    Several commenters argued that the government could simply exercise 
the Takings Clause of the 5th Amendment. We are not experts in how the 
Federal government would exercise the Takings Clause. However, there is 
nothing ever ``simple'' about the process.\38\ We will leave it up to 
the agencies to decide the best course of action for their situation 
and not try to substitute our judgment for theirs.
---------------------------------------------------------------------------

    \38\ Inquiry as to whether a governmental action is an 
unconstitutional taking, by its nature, does not lend itself to any 
set formula, and a determination of whether justice and fairness 
require that economic injuries caused by public action be 
compensated by the government, rather than remain disproportionately 
concentrated on a few persons, is essentially ad hoc and fact 
intensive 10 A.L.R. Fed. 2d 231 (Originally published in 2006).
---------------------------------------------------------------------------

    Another commenter questioned the constitutionality of the current 
system, arguing that forcing the public to pay for standards 
effectively limits access and thus restricts public participation in 
government. Most of the cases cited, however, dealt with the government 
or the courts preventing public access.\39\ Given the Government 
Printing Office's statutory authority to charge for the Federal 
Register and CFR, we find this argument unpersuasive.
---------------------------------------------------------------------------

    \39\ Globe Newspaper Co. v. Superior Court for Norfolk County, 
457 U.S. 596, 604 (US 1982) (quoting Mills v. Alabama, 384 U.S. 214, 
218 (1966)); see also Press Enterprise v. Superior Court, 478 U.S. 1 
(1986). Cf. In re Gitto Global Corp., 422 F.3d 1 (1st Cir. 2005); 
Leigh v. Salazar, 677F.3d 892 (9th Cir.2012). The commenter also 
references Cf. Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 
666-68 (1966), overturning poll taxes.
---------------------------------------------------------------------------

b. Copyright Issues
    Several commenters claim that once a standard is IBR'd into a 
regulation it becomes law and loses its copyright protection.\40\ 
Therefore, IBR'd standards must be available for free online. Other 
commenters, including the petitioners, don't go quite so far. Instead 
they claim that when agencies IBR copyrighted material into their 
regulations, the 5th Circuit's decision casts doubt on the legality of 
charging the public for access to that IBR'd material, see Veeck v. 
Southern Building Code Congress International, Inc., 293 F.3d 791 (5th 
Cir. 2002).\41\
---------------------------------------------------------------------------

    \40\ Citing Banks v. Manchester, 128 U.S. 244, (1888).
    \41\ Veeck v. Southern Building Code Congress International, 
Inc., 293 F.3d 791 (5th Cir. 2002).
---------------------------------------------------------------------------

    In Veeck, the court held that in some instances model building 
codes developed by an organization adopted

[[Page 60792]]

by government entities into regulations may become law, and to the 
extent that the building code becomes law it enters the public domain. 
Federal law still provides exclusive ownership rights for copyright 
holders \42\ and provides that Federal agencies can be held liable for 
copyright infringement.\43\ Additionally, both the NTTAA and OMB 
Circular A-119 require that federal agencies ``observe and protect'' 
the rights of copyright holders when IBRing into law voluntary 
consensus standards.\44\
---------------------------------------------------------------------------

    \42\ 17 U.S.C. 106.
    \43\ 28 U.S.C. 1498(b).
    \44\ OMB Circular A-119.
---------------------------------------------------------------------------

    Recent developments in Federal law, including the Veeck decision 
and the amendments to FOIA have not expressly overruled U.S. copyright 
law or the NTTAA, therefore, we agree with the commenters who said that 
when the Federal government references copyrighted works, those works 
should not lose their copyright. However, the responsible government 
agency should collaborate with the SDOs and other publishers of IBR'd 
materials to ensure that the public does have reasonable access to the 
referenced documents. Therefore, in this NPRM we propose to require 
that agencies discuss how they have worked with copyright holders to 
make the IBR'd standards reasonably available to commenters and to 
regulated entities.
    Another commenter suggested that OFR loan out electronic versions 
of copyrighted standards much like a library. Unfortunately, this goes 
beyond our statutory authority and agency's resources.
    One commenter stated that the OFR should work with agencies to take 
a collaborative approach to copyright, not one based solely on 
entitlement, to promote the consensus standard system. This commenter 
recommended a five-category approach to collaboration.\45\
---------------------------------------------------------------------------

    \45\ See NARA-12-0002-0118.
---------------------------------------------------------------------------

    1. Free, but copyrighted--the material would be marked as 
copyrighted but would be available free and online.
    2. Extraneous--OFR would work with agencies to remove extraneous 
IBRs from the CFR.
    3. Generally approved limitations--OFR would allow agencies to make 
further accommodations to standards developed by voluntary consensus 
organizations, such as read-only online access to IBR'd standards. 
(Here the commenter sets out several conditions both agencies and SDOs 
would need to meet to get IBR approval.)
    4. Good Cause--OFR should approve additional restrictions access if 
the SDO shows good cause based on its business structure.
    5. Agency Necessity--if a SDO refuses to collaborate with an agency 
without showing good cause or if the agency argues there is no 
alternative than using a highly restrictive standard, the OFR may not 
be able to require electronic public access. So OFR would encourage 
agencies to work with NIST to find an alternative standard.
    We decline to take this commenters approach and note that we do not 
have the resources to establish such a complicated regulatory scheme 
for IBR approval. This plan would also increase the time needed to 
approve agency IBR requests, unnecessarily duplicate agencies' attempts 
to make standards available, and add delays to an already complicated 
rulemaking system.
c. Outdated Standards IBR'd Into the CFR
    A few commenters mentioned that some of the standards IBR'd into 
the CFR were outdated or expressed concern that agencies were failing 
to update the IBR references in the CFR. One commenter suggested that 
greater public access to IBR'd standards might alert policy and 
industry communities to the fact that Federal regulations reference 
outdated private standards and need to be updated to improve public 
safety. Another commenter stated that some standards are out of date or 
out of print and are not easily available. This commenter noted that 
some OSHA IBR'd materials date from the 1950s.\46\ This commenter 
expressed concern that the current version of a standard may contain 
valuable information even though the historical version is still IBR'd 
in the Federal regulation text. This commenter suggested that sales of 
historical documents are not related to support of the current version 
and should be free for the agency and the SDO and that SDOs should 
charge only for the current version. The commenter didn't want a 
situation where an employer must buy two versions of the same standard.
---------------------------------------------------------------------------

    \46\ See NARA-12-002-0147.
---------------------------------------------------------------------------

    In the past few years, we have reviewed a number of agency IBR 
approval requests that seek to retain, expand, or create IBRs using 
very old standards of questionable availability. In some cases, there 
may be no appropriate alternative or recent standards and agencies may 
have no choice but to rely on older material for IBR.
    To address this issue, we required that agencies provide additional 
contact information for older standards that are not readily available 
from their original publishers. Examples of regulations that include 
modified availability arrangements for old, difficult to obtain IBR'd 
documents include National Archives and Records Administration (NARA) 
regulations at 36 CFR part 1234 (74 FR 51004, October 2, 2009), 
Department of Energy (DOE) regulations at 10 CFR part 430 (74 FR 54445, 
October 22, 2009), and OSHA regulations at 29 CFR part 1926 (75 FR 
47906, August 9, 2010). While we don't agree with the petitioners that 
we have the statutory authority to require that these agencies post 
these IBR materials online, we do require that they provide a way for 
interested parties to contact the agencies directly to work out an 
arrangement so that the IBR'd materials could be examined at an agency 
location more convenient to the requester.
    In January of 2011, President Obama issued Executive Order 13563, 
``Improving Regulation and Regulatory Review,'' dated January 18, 
2011,\47\ which was closely followed by OMB Memorandum M-11-10, 
``Memorandum for the Heads of Executive Departments and Agencies, and 
of Independent Regulatory Agencies.'' After these documents were 
issued, the legal staff of the OFR wrote a blog post discussing section 
6 of Executive Order 13563. This section instructs agencies to conduct 
periodic, retrospective review and analysis of existing regulations 
with an eye toward determining which, if any, ``may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them . . . so as to make the agency's 
regulatory program more effective and less burdensome in achieving 
regulatory objectives.'' OMB Memorandum M-11-10 reiterates and expands 
on this, stating that ``[w]hile systematic review should focus on the 
elimination of rules that are no longer justified or necessary, such 
review should also consider strengthening, complementing, or 
modernizing rules where necessary or appropriate. . .''. We suggested 
in our blog post that agencies use this regulatory review to pay 
special attention to any IBR'd materials cited in those regulations. 
Agencies should be mindful of the requirement that such materials be 
``reasonably available to and useable by the class of persons affected 
by the publication'' \48\ and that IBR approval is ``limited to the 
edition of the publication that is approved.'' \49\ We further stated 
in this blog post that it is incumbent on agencies to periodically

[[Page 60793]]

review materials approved for IBR in their regulations and update them 
as appropriate. All IBR'd materials must be ``reasonably available'' to 
the regulated parties no matter their age or source. If this becomes a 
problem using the contact information included in the CFR, agencies are 
required to update the regulations with current, complete contact 
information or to arrange for--and publish--instructions for 
alternative means of availability if necessary.\50\
---------------------------------------------------------------------------

    \47\ 76 FR 3821; January 21, 2011.
    \48\ See 1 CFR 51.7(a)(4).
    \49\ (see 1 CFR 51.1(f)).
    \50\ See https://www.federalregister.gov/blog/2011/02/executive-order-13563-and-incorporation-by-reference, last visited on March 
15, 2013.
---------------------------------------------------------------------------

    Another commenter listed agency regulations, some of which IBR 
standards others do not. This commenter then states that the average 
age of a standard IBR'd into the CFR is 24 years old. This, he claims, 
is ``in part . . . due to the antiquated practices of the Federal 
Register.'' \51\ He continues by stating that at least part of the 
problem is that the OFR has not implemented an ACUS recommendation from 
1979 that suggested OFR issue a rule establishing a procedure for 
Federal agencies to use a joint rule to update particular standards 
into their regulations.\52\ According to the commenter, this procedure 
would allow any agency with a superseded standard to participate. The 
procedure would also allow for each agency to make its own decisions on 
how to use a particular standard.
---------------------------------------------------------------------------

    \51\ See comment NARA-12-0002-0118.
    \52\ See ACUS Recommendation 78-4 (44 FR 1357, January 5, 1979).
---------------------------------------------------------------------------

    Forcing all agencies that wish to IBR a particular standard to work 
together to issue a joint rule would not automatically shorten the time 
it takes for agencies to complete rulemaking projects. Coordinating 
among agencies is not always easy given their differing statutory 
authority and missions. ACUS Recommendation 78-4 suggests that when a 
standard is IBR'd by two or more agencies, the OFR should coordinate 
the publication of a joint rule to update the standard. The 
Recommendation suggests that OFR should prepare a NPRM that would 
publish under the name of each agency. However, ACFR regulations 
require each agency to publish their own regulations, so the OFR could 
not prepare such a document.\53\
---------------------------------------------------------------------------

    \53\ See 1 CFR 21.21. While outside the scope of the petition, 
the commenter also states the OFR unreasonably limits agencies use 
of cross-referencing other agencies regulations in the CFR. The 
Federal Register Act requires orderly codification (44 U.S.C. 1510) 
and gives the ACFR the authority to issue regulations that ensure 
the orderly codification of agency rules and regulations. The ACFR's 
regulation on cross-referencing is found at 1 CFR 21.21. Paragraph 
(c) of this section requires that each agency set out its own 
regulations in the CFR in full text. It limits the use of cross-
referencing to particular situations set out in this section. 
Orderly codification cannot be carried out without some boundaries 
and restrictions. We have found that many times cross references are 
not updated and thus are not useful.
---------------------------------------------------------------------------

    The statute allows agencies to IBR standards with the approval of 
the Director. The OFR interprets this language to require that agencies 
make a request to the Director. There is no prohibition on agencies 
issuing a joint final rule to revise their regulations to update IBR'd 
materials within their own regulations, if they choose to work together 
as the Recommendation suggests.
d. Standards Should Be Used as Guidance Not Requirements
    A couple of commenters suggested that SDO standards should be used 
in agency guidance materials instead of in regulations. If agencies did 
that, the public would not be required to comply with those standards 
and they wouldn't need to be posted online for free as discussed in the 
petition. According to these commenters, this is a better solution to 
IBR because the public can decide if purchasing the standard would help 
them comply with the regulation. It would also ensure that SDOs are 
compensated for their work, while creating a market incentive for them 
to keep their prices reasonable in relation to the alternative 
standards. SDO standards would be supportive of compliance and would 
not become the law. At least one commenter suggested ``the NTTAA and 
[OMB] Circular A-119 make a distinction between regulations 
affirmatively requiring a specified course of conduct and standards 
that serve to indicate but one means by which those requirements may be 
satisfied.'' \54\ This commenter states that the benefits of using 
standards as guidance include:
---------------------------------------------------------------------------

    \54\ See NARA-12-0002-0149.
---------------------------------------------------------------------------

    1. Lessening burdens on the OFR. Guidance is not required to be 
published in the Federal Register so we don't have to review them.
    2. Making it easier to update standards. Agencies wouldn't have to 
go through a rulemaking each time the SDO issued a new version of a 
standard.
    Another commenter recommended that OMB Circular A-119 should 
discuss the distinction between rules and ``regulatory guidance.'' The 
commenter wanted OMB to encourage agencies to withdraw standards IBR'd 
in the CFR in favor of IBRing these standards into agency directives 
and interpretations, which the commenter claims are ``equally 
authoritative, but changeable by notice.'' \55\ The commenter suggests 
that by doing this the public develops an awareness of the standard 
while SDOs copyrights are protected.
---------------------------------------------------------------------------

    \55\ See NARA-12-0002-0118. This commenter also suggests that 
OFR should allow agencies to IBR agency documents into Federal 
Register notice documents provided the agency provides an 
authenticated version of its document for Federal Register custody. 
As we discussed earlier, we discourage agencies from IBR'ing agency-
created materials so that a shadow publication system is not 
established and the transparency of a centralized publication system 
established under the FRA is maintained.
---------------------------------------------------------------------------

    The FRA and the APA \56\ require that documents of general 
applicability and legal effect be published in the Federal Register and 
codified in the CFR. Thus, what these commenters suggest could 
jeopardize agencies' enforcement of requirements needed to maintain the 
health and safety of the public by removing them from the CFR. In 
addition, agencies are not generally required to codify their guidance 
documents, policy letters, or directives in the CFR and thus, they may 
not be published in the Federal Register. \57\ So, if standards are 
only referenced in guidance, some of the transparency is gone because 
there would be no uniformity as to how the standard is referenced in 
the guidance document. In many instances, agency-issued guidance and 
policy statements become binding as a practical matter.\58\ But, 
because these documents might not be published in the Federal Register 
and are not codified, it's not clear how moving an IBR from regulation 
text to documents that are more difficult to locate provides the public 
with adequate knowledge of the document. If the documents are not 
submitted for publication in the Federal Register, then the OFR legal 
staff can't review them. We do not have the staff or other resources 
needed to check each agency's Web site for documents that should be 
published in the Federal Register. Also, it is not clear why

[[Page 60794]]

agencies would need IBR approval for these non-regulatory documents.
---------------------------------------------------------------------------

    \56\ 44 U.S.C. 1505, 1510 and 5 U.S.C. 553, respectively.
    \57\ ACUS Recommendation 76-2 (41 FR 29653, July 19, 1976) 
recommends that agencies publish their statements of general policy 
and interpretations of general applicability in the Federal Register 
citing 5 U.S.C. 522(a)(1)(D). This recommendation further recommends 
that when these documents are of continuing interest to the public 
they should be ``preserved'' in the CFR. 41 FR 29654. The 
recommendation also suggests that agencies preserve their statements 
of basis and purpose related to a rule by having them published in 
the CFR at least once in the CFR edition for the year rule is 
originally codified. Many agencies have not followed this 
recommendation, most likely because some of the material is 
published in the United States Government Manual or they find the 
cost prohibitive.
    \58\ See NARA-12-0002-0162.
---------------------------------------------------------------------------

    This commenter also stated that ``[t]o the extent standards remain 
in the codified rules, OMB should streamline the process of 
incorporating new editions.'' \59\ It's not clear what the commenter is 
referring to with this statement. If this commenter wanted OMB to 
suggest ways agencies can work through their internal and OMB clearance 
processes to make that process more streamlined, then we agree. OMB 
should work with agencies to improve and expedite the clearance 
process. If the commenter is suggesting that OMB change the way IBR 
approval process works, we disagree with the commenter. Under statute, 
only the Director can approve agency requests to IBR material into the 
CFR, OMB may suggest ways to make the process more streamlined but it 
cannot change the regulations regarding IBR in 1 CFR part 51.
---------------------------------------------------------------------------

    \59\ See NARA-12-0002-0118.
---------------------------------------------------------------------------

    Other commenters offered similar suggestions to ``improve'' the IBR 
process. One suggestion would be to allow agencies to simply file an 
updated standard with the OFR. We would file it and the agency would 
not have to go through the rulemaking process to update its standards. 
Then, we would periodically annotate the CFR with editorial notes 
stating that the standard that is codified is no longer applicable. One 
commenter suggested that if an agency were required by Congress to 
update the standard, the agency could simply link to that annotation.
    Going back to the FRA, the APA, 1 CFR chapters I and II, and the 
general principles of transparency already discussed, these suggestions 
are untenable. Notice, whether actual or constructive, is one of the 
main pillars of our Federal regulatory process. If an agency has given 
notice, through a final rule codified in the CFR, that a specific 
standard is required, it can't require something else. And since we 
don't consider annotations to the CFR part of the regulation, any 
editor's note we added would be unenforceable. But, we couldn't add 
such a note because we have no authority to substantively change 
another agency's regulations.
    Another commenter suggested that agencies should be able to remove 
lengthy ``enforcement policies'' from the CFR and then IBR them. As 
we've already discussed, however, this would create a shadow system of 
regulations.
    Several other commenters appeared to suggest that we allow and 
approve material to be IBR'd into preambles, guidance documents, 
informal procedures, and Notice documents. One theory appears to be 
that if agencies could IBR material into documents that were not in the 
CFR, it would be much easier and faster for them to update the 
standards with new versions. But, as we've already discussed, agencies 
IBR material in order to enforce compliance with that material. Only 
material in the CFR can be enforced, so IBR'ing material into documents 
that aren't enforceable won't meet agency needs. Agencies are already 
allowed to reference outside material in those documents, so adding a 
layer of review and approval, while significantly taxing our resources, 
would not make the IBR process quicker and simpler; it would have the 
exact opposite effect.
    A second theory for expanding IBR to more than final rules seems to 
be to ensure that the public has access to all material they need to be 
able to comment on an agency NPRM, even if the agency never intends to 
IBR the document at a final rule stage. While the OFR endorses this 
idea, the agency docket is the appropriate (and current) place for this 
material. 5 U.S.C. Sec.  552(a) clearly discusses IBR in the context of 
final rules and the requirements that are part of final rules. It is 
not concerned with ensuring adequate opportunity to comment. Other 
parts of the APA put that burden on the issuing agency, not on us, see 
5 U.S.C. Sec.  553.
    A commenter was concerned that we would approve an IBR with a 
general reference to the Internet, rather than a specific instance, 
since Web sites and domains can easily change. However, the Director 
does not approve any ``general references,'' whether online or not. He 
approves specific editions or versions of specific standards. We 
strongly encourage agencies to include Web site addresses where the 
standard can be obtained, but even if that addresses changes, it won't 
affect the validity of the IBR approval.
e. Concerns Regarding the Misuse of the IBR Process
    Several commenters expressed a general concern that allowing 
agencies to IBR material into the CFR circumvented the requirements of 
notice and comment rulemaking. One commenter claimed it is 
inappropriate to IBR consensus standards that have not gone through an 
economic analysis and an opportunity for broad public comment. The 
primary concern of this comment is that voluntary consensus 
organizations don't take into account the economic impact of their 
consensus standards. Since many standards offer a very complex and 
stringent protocol that industry can choose to adopt to enhance safety, 
these standards are not a replacement for a rulemaking because they 
don't account for the economic impact of the protocols.
    As previously stated, we are not subject matter experts in the many 
subject areas in which agencies request IBR approval of standards into 
their regulations; we are not able to determine how a standard was 
developed or if there are alternative standards the agency could IBR 
instead. We believe it is up to the agency to determine these questions 
and examine the economic impact on regulated entities during the 
rulemaking process. We propose that agencies seeking the Director's 
approval of their IBR requests include in the preambles of their 
rulemaking documents a discussion of the actions the agency took to 
ensure the materials were reasonably available to interested parties or 
summaries of the contents of the materials the agencies are seeking to 
IBR.
    At least 2 commenters raised concerns about the IBR of API's RP/
1162 entitled Public Awareness.\60\ They claim that IBR'ing this 
standard was a misuse of the IBR process because this standard is not 
technical in nature. These commenters assert that the NTTAA and OMB 
Circular A-119 envision that IBR will be limited to technical standards 
or specifications. They suggest that by IBR'ing this standard on 
developing a public awareness program to increase public awareness of 
pipeline operations and safety issues, the agency effectively 
transferred its authority to issue regulations to the private 
organization.
---------------------------------------------------------------------------

    \60\ See NARA-12-0002-0077 and NARA-12-0002-0092.
---------------------------------------------------------------------------

    FOIA and the regulations in 1 CFR part 51 do not limit IBR approval 
to only technical standards. We don't have the resources to determine 
what types of standards are appropriate for an agency to IBR. We assume 
that agencies have fully considered the impact of any documents they 
wish to IBR, including whether they are in fact delegating their 
rulemaking authority to a third-party. We do not review material 
submitted for IBR to determine if it is technical in nature or is a 
performance-based requirement; we leave that determination to the 
agency subject matter experts. We review the IBR'd material to ensure 
it meets the requirements set out in part 51.
f. Indirect IBR'd Standards
    At least 3 commenters raised the issue that some of the IBR'd 
standards also reference other standards in their text. These 
commenters stated that obtaining IBR'd material can cost several 
thousands of dollars a year. One

[[Page 60795]]

commenter uses, as an example, the ASTM foundry standard, which the 
commenter said cross-references 35 other consensus standards.\61\ These 
commenters mentioned that these costs may be cumulative, as companies 
or individuals must purchase multiple layers of IBR'd documents. In 
sum, these commenters seemed to suggest that OFR mandate that the 
primary IBR material and all tiered IBR material be placed online to 
greatly reduce the cost of access to IBR'd standards and expand the 
number of people who can view the IBR'd standards.
---------------------------------------------------------------------------

    \61\ See NARA-12-0002-0147.
---------------------------------------------------------------------------

    Our regulations have never contained any provision to allow for IBR 
of anything but the primary standards and, as a practical matter, we 
have no mechanism for approving anything but those primary standards. 
The OFR is a procedural agency and we do not have subject matter or 
policy jurisdiction over any agency or SDO. We must assume that 
agencies have fully considered the impact of any document, and, by 
extension, material IBR'd, they publish in the Federal Register. In 
many instances, agencies reference third-party standards in their 
NPRMs, so both the general public and the regulated public can review 
and comment on those standards before they are formally IBR'd in the 
CFR. We do not review material submitted for IBR to determine if it 
also has other materials IBR'd; we look only at the criteria set out in 
our regulations. Determining that an agency intends to require some 
type of compliance with documents referenced in third-party standards 
is outside our jurisdiction; similarly, we cannot determine whether or 
not the subject matter of a third-party standard is appropriate for any 
given agency.
    We do recommend to agencies that they carefully consider what 
standards they wish to IBR and the impact of that standard on the 
regulated entities. If asked, we would suggest that the agency review 
the second tier standards to determine if it wished to IBR any of those 
standards. If the agency decides to IBR any second tier standards we 
will work with the agency on its IBR approval request for those 
standards. The agency could opt to discuss those ``second tier'' 
standards in the preamble.
    One commenter stated that we shouldn't reject or delay IBR approval 
based on secondary references within a standard. For the reasons stated 
above we don't do this now and our NPRM does not suggest that we begin 
doing this.
g. International Stance--Trade Imbalance, Export Administration 
Regulations, International Traffic in Arms Regulations
    Several commenters expressed concern that granting the petition 
would create unnecessary problems under U.S. international obligations. 
These commenters stated that the U.S. standards development system is 
independent of government control and offers a level of assurance to 
the world that IBR'd standards are not crafted to establish or 
encourage trade barriers. They were concerned that any revisions to our 
regulations could fundamentally undermine this system and would cause 
the U.S. to lose this competitive advantage. It might also compromise 
the role that standards play in protecting health, safety, and the 
environment. These commenters also expressed concern that if the U.S. 
were to lose its competitive advantage, other countries would be quick 
to seize the opportunity.
    We understand that the U.S. is a party to international agreements 
under which it is obligated to use relevant international standards in 
Federal regulations.\62\ We strongly recommend that agencies work with 
the United States Trade Representative, and the Departments of State 
and Commerce to make sure their regulations meet U.S. international 
obligations. In part, this is why we decline to grant the petitions 
request to completely revise our regulations. Instead, we are proposing 
to revise our regulations to require that agencies discuss in the 
preambles of their rulemaking documents how the IBR'd materials were 
made reasonably available under Federal law and policy, including any 
international obligations if applicable.
---------------------------------------------------------------------------

    \62\ See for example, the World Trade Organization Agreement on 
Technical Barriers to Trade, Article 2.4.
---------------------------------------------------------------------------

    One commenter voiced a concern that placing export-controlled 
information in the public domain could happen if we adopted the changes 
suggested in the petition. This commenter then stated that this type of 
information is subject to the Export Administration Regulations (EAR) 
or controlled by the International Traffic in Arms Regulations (ITAR). 
The Department of Commerce and the Department of State have the 
authority over these types of controlled information. This commenter 
then recommends that any revisions to part 51 include the following 
language: ``Nothing herein requires or authorizes the release to the 
public either directly or through incorporation by reference of any 
information subject to the export control restrictions as promulgated 
by the U.S. Department of State or the U.S. Department of Commerce.'' 
\63\ Because we are not proposing to require agencies to post all 
materials IBR'd online, we decline to propose adding the commenter's 
suggested language to part 51.
---------------------------------------------------------------------------

    \63\ See NARA-12-0002-0134.
---------------------------------------------------------------------------

h. OFR Mission
    One commenter suggested that OFR needs to focus on a new mission 
related to IBR and provided the following suggestions related to public 
domain and privately created documents. In regard to public domain 
documents, this commenter appeared to recommend that we encourage 
agencies to IBR agency guidance and other agency documents into 
guidance documents, preambles, and notice documents.\64\ This commenter 
also seemed to suggest that these types of documents be IBR'd into the 
CFR; for example, an agency would IBR the preamble of a NPRM into the 
final rule. Thus, he would have us do away with the current prohibition 
found in 1 CFR 51.7(c)(1) that prohibits agencies from IBR'ing material 
that published in the Federal Register. He suggested that this would 
ensure that we maintain archival records of important preambles and 
agency guidance. However, this misses the point of IBR and of its 
requirements. Any document that published in the Federal Register is 
automatically part of the Federal record, with its own permanent 
citation,\65\ so IBRing a preamble, for example, would only create a 
more-complicated citation system with no apparent benefit.
---------------------------------------------------------------------------

    \64\ See NARA-12-002-0118. This commenter also suggests that the 
Director IBR the OFR's Document Drafting Handbook into part 51.
    \65\ See 44 U.S.C. 1507.
---------------------------------------------------------------------------

    As previously discussed, there is an implied presumption that 
material developed and published by a Federal agency is inappropriate 
for IBR by that agency, except in limited circumstances. Otherwise, the 
Federal Register and CFR could become a mere index to material 
published elsewhere. This runs counter to the central publication 
system for Federal regulations envisioned by Congress in the FRA and 
the APA.\66\ We do not have the resources to review and approve IBR 
references in non-regulatory text including guidance documents, 
preambles, and notice documents. Our focus with IBR approval continues 
to be placed on CFR regulatory text when agencies wish to require the 
use of materials not published in the Federal Register.
---------------------------------------------------------------------------

    \66\ 47 FR 34107 (August 6, 1982).

---------------------------------------------------------------------------

[[Page 60796]]

    As for privately created materials, this commenter wanted us to 
focus on helping agencies publish and archive legal materials in 
secure, electronic formats. This commenter believed 1 CFR part 51 is 
unnecessarily burdensome and prohibits agencies from using many of the 
efficient tools the Internet makes available.
    We are not the Government Printing Office, whose mission is to help 
agencies publish and post online agency documents. Our mission is to 
publish the documents Congress required to be published in the FRA.\67\ 
As for the commenter's suggestion that the current part 51 is 
burdensome and prohibits agencies from effectively using the Internet, 
we disagree. The current part 51 provides basic procedural requirements 
that ensure agencies are referencing IBR'd materials so that it is 
clear which documents are IBR'd into the CFR. Our requirements also 
provide that agencies include direct contact information in the 
regulatory text so that the reader does not have to search for agency 
and publisher contact information elsewhere. Our regulations allow 
agencies the flexibility to work with SDOs and other publishers to post 
the material online or provide other means of access to the materials 
IBR'd into the CFR.
---------------------------------------------------------------------------

    \67\ See 44 U.S.C. 1505 and 1510.
---------------------------------------------------------------------------

    Finally, this commenter wanted us to work with NIST to create a 
database with the IBR'd standards. He felt OFR's record schedule for 
IBR'd materials is burdensome because we accession some material to 
NARA while it's still IBR'd in current regulations. To correct this, 
the commenter seemed to suggest the OFR maintain digital scans of all 
IBR'd material and provide a high quality searchable Web site that 
links to the CFR and the IBR'd material. This commenter also suggested 
that we remove contact information from the CFR and maintain it only in 
this database.
    We are happy to work with NIST so that its database of IBR'd 
standards on www.standards.gov is current. Since the NIST database only 
tracks consensus standards, we will continue to maintain our finding 
aid of IBR'd materials on the eCFR (www.ecfr.gov) to assist people 
looking for other types of documents that have been IBR'd. As discussed 
in detail previously, we disagree with the suggestion that Federal law 
and current technology require that copyright protections no longer 
apply to materials that have been IBR'd so decline to create a site 
that provides digital scans of IBR'd materials.\68\ Finally, we believe 
that the contact information for OFR, agencies, and publishers of IBR'd 
materials is important and needs to remain in the CFR.
---------------------------------------------------------------------------

    \68\ Within the past few years, we've begun allowing agencies to 
submit all electronic IBR approval requests. When agencies choose 
this request process, they provide us with electronic copies of the 
materials they wish to IBR. Because we have limited server space, we 
have a record schedule for these documents as well, so we will still 
need to research where the IBR'd materials are stored. Thus, having 
digital copies of documents does not solve the perceived problem.
---------------------------------------------------------------------------

i. Miscellaneous Suggestions
    One commenter requested that we require agencies to make all 
outside materials they relied on in drafting the rulemaking documents 
available online for free. We have statutory authority only with regard 
to material IBR'd, not to all other material referenced. While we 
encourage agencies to make that material available, but we cannot 
require them to do so.\69\
---------------------------------------------------------------------------

    \69\ As noted in section 1, however, agencies are already 
required to disclose scientific data that they've relied on for 
rulemaking. United States v. Nova Scotia Food Products Corp., 568 
F.2d 240 (2d Cir. 1977).
---------------------------------------------------------------------------

    One commenter recommended that we eliminate IBR entirely and make 
agencies issue performance-based, rather than standards-based 
regulations. This is well outside our statutory authority. Agencies 
currently choose whether performance-based or prescriptive regulations, 
or a hybrid of both, is best for each specific rulemaking, and whether 
any part of the performance or prescriptive requirements are best found 
in existing standards. We do not have the authority or the expertise to 
substitute our judgment for theirs.
    Another commenter also raised the issue of conformity 
assessment.\70\ However, that too is outside the scope of our 
authority, our expertise, and this petition.
---------------------------------------------------------------------------

    \70\ See, for example, NARA-12-0002-0063 and 0067.
---------------------------------------------------------------------------

    One commenter expressed frustration with private corporations and 
government corruption. Others objected to the idea that regulations 
could become law without allowing citizens access. One commenter 
asserted that agencies should not publish regulations individually, 
that there needed to be a central repository that published regulations 
which would be available online. He also recommended an elaborate file-
naming convention for all regulations and NPRMs, not just those 
containing IBR material.\71\ One submitter provided a copy of OSHA's 
acceptance of Industrial Consensus Standards from the General Agreement 
on Tariffs and Trade (GATT), but without explaining its relevance to 
the petition.\72\
---------------------------------------------------------------------------

    \71\ Since this describes fairly well the Federal Register 
system, as established in 1935, we agree with the comment regarding 
centralization of regulations. However, changing how documents are 
named is outside the scope of this petition.
    \72\ We do discuss international issues elsewhere in section 10, 
including the GATT.
---------------------------------------------------------------------------

    We also received recommendations to:
     Create a government SDO and to nationalize existing 
standards
     Change the existing SDO model
     Make all standards open-source
     Host all online standards \73\
---------------------------------------------------------------------------

    \73\ Online standards are, by definition, already online, so we 
see no need to also host them through our domains.
---------------------------------------------------------------------------

     Revise the tax code
     Amend HR 2854
     Make all agency drafts publically available
     Have Federal agencies use objective criteria to evaluate 
the potential IBR of voluntary non-consensus standards
     Analyze how other Federal agencies compile data and meta-
data.
    The OFR has no authority to create agencies, change how SDOs 
operate, or amend existing statutes. Further, we cannot make agency 
drafts publically available. The ACFR regulations,\74\ which were 
upheld by a Federal court,\75\ specifically state that we hold all 
documents in confidence until they are placed on public inspection and 
filed for publication Finally, we cannot implement changes in other 
agencies.
---------------------------------------------------------------------------

    \74\ 1 CFR 17.2(a).
    \75\ Kennecott Utah Copper Corp. v. U.S. Dept. of Interior, 88 
F.3d 1191 (D.C. Cir. 1996).
---------------------------------------------------------------------------

    One commenter requested that OFR conduct an audit of all IBR'd 
standards. We decline. The last audit our office undertook lasted 
several years, with many more staff and many fewer IBR'd standards, and 
was done shortly after the Director became the sole person authorized 
to approve IBR requests. This commenter also requested permission to 
install a high speed copier in our office which non-OFR employees would 
use to copy and scan IBR'd material. The Antideficiency Act, 31 U.S.C. 
1342, prevents us from accepting voluntary services and ethics rules 
prevent us from accepting gifts. Finally this commenter requested that 
NARA systematically archive all ANSI standards, even those not IBR'd, 
to ensure continuing access to these standards. Although we are an 
office within NARA, we are only involved in archiving records as a 
client--that is, we send our material for archiving according to our 
records schedule just like any other Federal agency. We don't

[[Page 60797]]

have the authority to speak on behalf of NARA. In addition, ANSI is not 
a government agency so OFR has no authority to archive all of its 
standards.

Regulatory Analysis

    The Director developed this NPRM after considering numerous 
statutes and Executive Orders related to rulemaking. Below is a summary 
of his determinations with respect to this rulemaking proceeding.

Executive Order 12866

    The NPRM has been drafted in accordance with Executive Order 12866, 
section 1(b), ``Principles of Regulation.'' The Director has determined 
that this NPRM is a significant regulatory action as defined under 
section 3(f) of Executive Order 12866. The proposed rule has been 
submitted to OMB under section 6(a)(3)(E) of Executive Order 12866.

Regulatory Flexibility Act

    This NPRM will not have a significant impact on small entities 
since it imposes requirements only on Federal agencies. Members of the 
public can access Federal Register publications for free through the 
Government Printing Office's Web site. Accordingly, the head of the 
agency certifies that the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small entities.

Federalism

    This NPRM has no Federalism implications under Executive Order 
13132. It does not impose compliance costs on state or local 
governments or preempt state law.

Congressional Review

    This NPRM is not a major rule as defined by 5 U.S.C. 804(2). The 
Director will submit a rule report, including a copy of this NPRM, to 
each House of the Congress and to the Comptroller General of the United 
States as required under the congressional review provisions of the 
Small Business Regulatory Enforcement Fairness Act of 1986.

List of Subjects in 1 CFR Part 51

    Administrative practice and procedure, Code of Federal Regulations, 
Federal Register, Incorporation by reference.

    For the reasons discussed in the preamble, under the authority at 5 
U.S.C. 552(a), the Director of the Federal Register, proposes to amend 
chapter II of title 1 of the Code of Federal Regulations as set forth 
below:

PART 51--INCORPORATION BY REFERENCE

0
1. The authority citation for part 51 continues to read:

    Authority:  5 U.S.C. 552(a).

0
2. Revise Sec.  51.3 to read as follows:


Sec.  51.3  When will the Director approve a publication?

    (a)(1) The Director will informally approve the proposed 
incorporation by reference of a publication when the preamble of a 
proposed rule meets the requirements of this part (See Sec.  51.5(a)).
    (2) If the preamble of a proposed rule does not meet the 
requirements of this part, the Director will return the document to the 
agency (See 1 CFR 2.4).
    (b) The Director will formally approve the incorporation by 
reference of a publication in a final rule when the following 
requirements are met:
    (1) The publication is eligible for incorporation by reference (See 
Sec.  51.7).
    (2) The preamble meets the requirements of this part (See Sec.  
51.5(b)(2)).
    (3) The language of incorporation meets the requirements of this 
part (See Sec.  51.9).
    (4) The publication is on file with the Office of the Federal 
Register.
    (5) The Director has received a written request from the agency to 
approve the incorporation by reference of the publication.
    (c) The Director will notify the agency of the approval or 
disapproval of an incorporation by reference in a final rule within 20 
working days after the agency has met all the requirements for 
requesting approvals (See Sec.  51.5).
0
3. Revise Sec.  51.5 to read as follows:


Sec.  51.5  How does an agency request approval?

    (a) In a proposed rule, the agency does not request formal approval 
but must either:
    (1) Discuss the ways in which it worked to make the materials it 
proposes to incorporate by reference reasonably available to interested 
parties in the preamble of the proposed rule, or
    (2) Summarize the material it proposes to incorporate by reference 
in the preamble of the proposed rule.
    (b) In a final rule, the agency must request formal approval by:
    (1) Making a written request for approval at least 20 working days 
before the agency intends to submit the final rule document for 
publication;
    (2) Discussing, in the preamble, the ways in which it worked to 
make the materials it incorporates by reference reasonably available to 
interested parties and how interested parties can obtain the materials;
    (3) Sending a copy of the final rule document that uses the proper 
language of incorporation with the written request (See Sec.  51.9); 
and
    (4) Ensuring that a copy of the publication is on file at the 
Office of the Federal Register.
    (c) Agencies may consult with the Office of the Federal Register at 
any time with respect to the requirements of this part.
0
4. In Sec.  51.7, revise paragraph (a) to read as follows:


Sec.  51.7  What publications are eligible?

    (a) A publication is eligible for incorporation by reference under 
5 U.S.C. 552(a) if it--
    (1) Conforms to the policy stated in Sec.  51.1;
    (2) Either:
    (i) Is published data, criteria, standards, specifications, 
techniques, illustrations, or similar material; or
    (ii) Substantially reduces the volume of material published in the 
Federal Register; and
    (3) Is reasonably available to and usable by the class of persons 
affected by the publication. In determining whether a publication is 
usable, the Director will consider--
    (i) The completeness and ease of handling of the publication; and
    (ii) Whether it is bound, numbered, and organized.
* * * * *
0
5. In Sec.  51.9, revise paragraphs (a) and (c) to read as follows:


Sec.  51.9  What is the proper language of incorporation?

    (a) The language incorporating a publication by reference must be 
precise, complete, and clearly state that the incorporation by 
reference is intended and completed by the final rule document in which 
it appears.
* * * * *
    (c) If the Director approves a publication for incorporation by 
reference in a final rule, the agency must include--
    (1) The following language under the DATES caption of the preamble 
to the final rule document (See 1 CFR 18.12):
    The incorporation by reference of certain publications listed in 
the regulations is approved by the Director of the Federal Register as 
of ------------ .
    (2) The preamble requirements set out in Sec.  51.5(b).
    (3) The term ``incorporation by reference'' in the list of index 
terms (See 1 CFR 18.20 Identification of subjects in agency 
regulations).


[[Page 60798]]


    Dated: September 30, 2013.
Charles A. Barth,
Director, Office of the Federal Register.
[FR Doc. 2013-24217 Filed 9-30-13; 4:15 pm]
BILLING CODE 1505-02-P