[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Rules and Regulations]
[Pages 66267-66278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26445]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 /
Rules and Regulations
[[Page 66267]]
OFFICE OF THE FEDERAL REGISTER
1 CFR Part 51
[Docket Number: OFR-2013-0001]
RIN 3095-AB78
Incorporation by Reference
AGENCY: Office of the Federal Register, National Archives and Records
Administration.
ACTION: Final rule.
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SUMMARY: In this document, we are revising our regulations on
incorporation by reference to require that agencies seeking the
Director of the Federal Register's approval of their incorporation by
reference requests add more information regarding materials
incorporated by reference to the preambles of their rulemaking
documents. Specifically, agencies must set out, in the preambles of
their proposed and final rules, a discussion of the actions they took
to ensure the materials are reasonably available to interested parties
and that they summarize the contents of the materials they wish to
incorporate by reference.
DATES: This rule is effective January 6, 2015.
ADDRESSES: You may find information on this rulemaking docket at
Federal eRulemaking Portal: http://www.regulations.gov. Docket
materials are also available at the Office of the Federal Register, 800
North Capitol Street NW., Suite 700, Washington, DC 20002, 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: 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\ (part 51). The petition specifically
requested that we amend our regulations to: (1) Define ``reasonably
available'' and (2) 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. After requests from several interested parties, we
extended the comment period until June 1, 2012.\2\
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\1\ 77 FR 11414 (February 27, 2012).
\2\ 77 FR 16761 (March 22, 2012).
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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.
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\3\ http://www.archives.gov/federal-register/cfr/ibr-locations.html last visited August 11, 2014.
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We agreed that our regulations needed to be updated and published a
proposed rule on October 2, 2013.\4\ However, we stated that the
petitioners' proposed changes to our regulations 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 \5\ (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).\6\ 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.
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\4\ 78 FR 60784 (October 2, 2013). We extended the comment
period on this proposal until January 31, 2014. See, 78 FR 69006
(November 18, 2013) and 78 FR 69594 (November 20, 2013).
\5\ Public Law 104-231 (1996).
\6\ In fact, agencies were incorporating material by reference
long before we were assigned the task of normalizing the process.
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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.'' \7\ 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.
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\7\ NARA-12-0002-0002.
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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: (1) In the
Federal Docket Management System (FDMS) in the docket for the proposal
or interim rule; (2) on the agency's Web site or; (3) readable free of
charge on the Web site of the voluntary standards organization that
created it during the comment period of a proposed rule or interim
rule. The petition suggested revising Sec. 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 Sec. 51.7(a)(2) to include documents that would otherwise be
considered guidance documents. And, it would revise Sec. 51.7(b) to
limit our review of agency-created materials to the question of whether
the material is available online. The petition would then revise Sec.
51.9 to distinguish between required
[[Page 66268]]
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 be hyperlinked.
The petitioners wanted 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 that
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.\8\ The petition suggested that the Director monitor proposed
rules to ensure that 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 ensure that 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.
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\8\ See also 44 U.S.C. 4101.
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As for the petition's limitation on agency-created material, the
Freedom of Information Act (FOIA), at 5 U.S.C. 552(a) (section 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.\9\ 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.\10\
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\9\ See also 44 U.S.C. 4101.
\10\ 47 FR 34107 (August 6, 1982).
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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.\11\ 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.
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\11\ 44 U.S.C. 1505 and 1510.
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In our document announcing that we received a petition to revise
our regulations in part 51, we specifically requested comments on nine
issues.\12\ We received comments on each of those issues and addressed
them in our NPRM.\13\
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\12\ 77 FR 11414 (February 27, 2012).
\13\ 78 FR 60784 (October 2, 2013).
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In our NPRM, we stated our concerns regarding several of the
petitioners' suggested revisions to our regulations. We stated that
while OFR does have the authority to review NPRMs to ensure our
publication requirements are met, a substantive review of IBR'd
materials referenced in a proposed rule, as implied by the petition, is
beyond our authority and resources. We also noted that the OFR has 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. These factors make review and
approval at the proposed rule stage impractical.
In our discussion of the copyright issues raised by the petitioners
and commenters, we noted that recent developments in Federal law,
including the Veeck decision \14\ and the amendments to FOIA, and the
NTTAA have not eliminated the availability of copyright protection for
privately developed codes and standards referenced in or incorporated
into federal regulations. Therefore, we agreed with commenters who said
that when the Federal government references copyrighted works, those
works should not lose their copyright. However, we believed the
responsible government agency should collaborate with the standards
development organizations (SDOs) and other publishers of IBR'd
materials, when necessary, to ensure that the public does have
reasonable access to the referenced documents. Therefore, we proposed
in the NPRM to require that agencies discuss how the IBR'd standards
are reasonably available to commenters and to regulated entities. One
way to make standards reasonably available, if they aren't already, is
to work with copyright holders.
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\14\ Veeck v. Southern Building Code Congress International,
Inc., 293 F.3d 791 (5th Cir. 2002).
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We also proposed to review agency NPRMs to ensure that the agency
provides either: (1) An explanation of how it worked to make the
proposed IBR'd material reasonably available to commenters or; (2) a
summary of the proposed IBR'd material. We proposed that agencies
include a discussion in their final rule preambles regarding the ways
it worked to make the incorporated materials available to interested
parties. We stated that this process would not unduly delay publication
of agency NPRMs or Final Rules and did not go beyond OFR's statutory
authority.
Several commenters were concerned that our NPRM didn't go far
enough--specifically noting that the proposed rule wouldn't require
agencies to provide free access to standards incorporated by reference
into the CFR. The issue of ``reasonable availability'' continued to
elicit comments related to the NPRM and we will discuss this issue,
along with other comments, below.
[[Page 66269]]
Based on comments to our NPRM, we have modified the regulation text
slightly so that we now 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: (1) Discussions of how
the materials are reasonably available and, if they aren't, the actions
the agency took to make the materials reasonably available to
interested parties and; (2) 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 again alleged that the OFR does not have the proper
authority to amend the regulations in 1 CFR part 51.\15\ As we stated
in the NPRM, we disagree with the commenter. Because section 552(a)
specifically states that the Director will approve agency requests for
IBR and that 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.
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\15\ OFR-2013-0001-0027.
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The regulations on the IBR approval process were first issued by
the Director in 1967 and found at 1 CFR part 20.\16\ Even though this
part was within the ACFR's CFR chapter, the preamble to the document
stated ``the Director of the Federal Register hereby establishes
standards and procedures governing his approval of instances of
incorporation by reference.'' \17\ And, while these regulations
appeared 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; \18\ 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.\19\ 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.'' \20\ 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.\21\ 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 37 FR 23602 and 23614, respectively. Thus, it is
appropriate for the Director, not the ACFR, to issue the regulations
found in 1 CFR part 51.
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\16\ 32 FR 7899 (June 1, 1967).
\17\ Id.
\18\ 34 FR 19106 at 19115 (December 2, 1969).
\19\ 37 FR 6804 (April 4, 1972).
\20\ Id.
\21\ 37 FR 6817 (April 4 1972).
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As for this commenter's concerns regarding following the rulemaking
requirements, we believe that we have followed the proper rulemaking
procedures as we are required to do and that we have taken into
consideration the impact of our revisions on both federal agencies and
the public.
Class of Persons Affected
A few commenters suggested that we define ``class of persons
affected'' to mean all interested parties. At least one commenter
claimed that section 552(a)'s reference to ``class of persons
affected'' is broader than just those who must comply with the
regulation--that it includes anyone with a ``stake in the content of
the IBR materials.'' \22\ The commenter based this claim on the phrase
in the undesignated paragraph, which provides that if the document
doesn't publish in the Federal Register and the person doesn't have
actual notice of the document that person may be ``adversely affected''
by the agency document. This commenter claimed that this provision,
along with the provision in 5 U.S.C. 702 (allowing persons who have
been ``adversely affected'' by an agency action to seek judicial
review), demonstrates that ``class of persons affected,'' as stated in
the provision allowing IBR, should be read more broadly ``to require
availability to those simply `affected' by the terms of the
incorporated material.'' \23\
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\22\ OFR-2013-0001-0029 at page 13.
\23\ OFR-2013-0001-0029 at page 13.
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However, the IBR provision contains a slight language change that
modifies ``affected'' by adding the phrase ``class of persons.'' This
addition could be read as an indication that the IBR material must be
reasonably available to those who must directly comply with the
regulation. Under the statute, it is acceptable to have material
reasonably available beyond the class of persons affected but it is not
required.
We continue to have concerns that any definition will fail because
it is either too broad to be meaningful or too restrictive to capture a
total class. Therefore we decline to define the phrase ``class of
persons affected.'' Thus, 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.
Reasonably Available
Several commenters agreed with the petitioners that reasonably
available means for free to anyone online, but they provided little or
no additional comment on this point. Many of the SDOs supported our
proposal and discussed how they are already providing access to their
standards that have been IBR'd. One commenter who supported our NPRM
noted that reasonably available was highly content-driven and felt the
agency issuing the rule should ensure that the standards are reasonably
available.\24\ Another agreed with our proposal, stating that agency
subject matter experts are suited to determine if a standard should be
IBR'd.\25\
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\24\ OFR-2013-0001-0030.
\25\ OFR-2013-0001-0038.
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However, some commenters alleged that the only way for OFR to meet
its statutory obligation was to deny IBR approval for all standards
there were not available for free online. A couple of commenters
modified their stance and claimed that OFR has a duty to deny IBR
approval for all standards that were not available at no cost to all
interested persons. Another suggested that, because of the internet,
reasonably available ``with respect to the law must now be understood
to mean available with not more than the minimal cost or effort
required to travel to a public or government depository library.'' \26\
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\26\ OFR-2013-001-0029 at page 5.
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One commenter commented generally on the U.S. tradition to provide
``inexpensive and widespread access to the law.'' \27\ This tradition
is tied to the current Administration's goal of transparency and
accountability. This commenter further stated that the government's
decision to regulate by incorporating expensive standards into
regulations is similar to charging filing fees and poll taxes and sends
a damaging message to the public. Other commenters suggested that our
proposal unlawfully delegates the reasonably available determination to
agencies. At least one commenter stated that OFR is bound by statute to
ensure that materials are reasonably available ``regardless of the
effect on the use of voluntary standards.'' \28\
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\27\ OFR-2013-0001-0036, see also OFR-2013-0001-0029.
\28\ OFR-2013-0001-0037 at page 2.
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Two other commenters vehemently argued that in order to be
reasonably
[[Page 66270]]
available, IBR'd standards must be accessible to all interested
parties.\29\ Both suggested that it is not enough to have material
available to be examined at the OFR. One commenter was concerned that
our proposal merely asks agencies how they worked with SDOs and other
publishers on the access issue.\30\ This commenter went on to state
that this requirement won't provide more consistent availability of
standards or ensure that the public has enough information to submit an
effective comment. The commenter expressed concern that agencies may,
in an effort to save money or time (negotiating with SDOs), decide that
despite unsuccessful attempts to make a standard reasonably available,
it would still request IBR approval, which we would grant. The
commenter further stated ``[a]t root then, access to all incorporated
matter should be free, if the evils of `secret law' OFR was established
to resist are to be avoided.'' \31\
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\29\ OFR-2013-001-0024 and OFR-2013-001-0029.
\30\ OFR-2013-001-0029.
\31\ OFR-2013-001-0029 at page 3.
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These commenters appeared to have a fundamental issue with
agencies' ability to IBR materials into the CFR. We decline to address
whether or not agencies should be allowed to IBR materials into the
CFR. This is beyond our authority. In this rule, we balanced our
statutory obligations regarding reasonable availability of the
standards with: (1) U.S. copyright law, (2) U.S. international trade
obligations, and (3) agencies' ability to substantively regulate under
their authorizing statutes. To achieve this balance, this rule requires
that agencies to discuss how IBR'd materials were made available to
parties (and where those materials are located) and to provide a
summary of those materials in the preambles of their rulemaking
documents. These requirements oblige agencies to provide more
information on how they made IBR'd material available and a summary of
the material, so the readers can, if they like, find and review the
standards. This rule continues to require that agencies provide the OFR
with a copy of the standard and maintain a copy at the agency for
public inspection; therefore we disagree that this rule is an unlawful
delegation of authority to the agencies.
Another commenter adamantly stated that the Director of the Federal
Register has the sole authority to set procedures for the approval of
agency requests for IBR. This commenter stated that ``reasonably
available'' is the sole statutory criterion for IBR approval so all
other considerations must be considered secondarily.\32\ This commenter
went on to state that it is not enough that agencies are required to
simply announce the location of IBR'd material.\33\ The commenter added
that our proposal won't work, because requiring a summary of the
standards in the preamble does nothing for interested parties \34\
``and would simply represent another wasteful check-off process in the
Federal Register publication process.'' \35\
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\32\ OFR-2013-0001-0004.
\33\ Id. At page 1. Citing Senator report No 88-1219 at 4 (1964)
and the 1967 Attorney General's Memorandum on the Public Information
Section of the Administrative Procedure Act (1967).
\34\ This commenter goes on to claim that OFR is wrong to assume
that agencies would remove online access to IBR'd materials, while
in the same comment, stating that the proposal provides agencies no
practical incentive to make IBR'd materials reasonably available,
implying that without OFR specifically requiring IBR'd materials be
available for free online, agencies will do nothing to improve
access to standards.
\35\ OFR-2013-0001-0004 at page 4.
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It is unfortunate that this commenter believed that the publication
requirements of the ACFR and Director (found in 1 CFR chapters I and
II) are just wasteful check-off processes. The FRA established the
ACFR, in part to provide that there was consistency on how agency
documents publish in the Federal Register. When this Act was amended in
1938 to create the CFR, it provided that the ACFR would issue
regulations to carry out the codification of agency documents of
general applicability and legal affect.\36\ As discussed throughout
this rule, the FOIA gave the Director the authority to approve agency
requests to IBR materials into their regulations.\37\ Both the ACFR and
the Director have throughout the years worked hard to ensure that the
publication requirements they issue provide the agencies and the public
clarity, uniformity, and consistency to maintain an orderly publication
system for federal agency documents and minimize busy work for the
agencies.
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\36\ 44 U.S.C. 1510.
\37\ 5 U.S.C. 552(a).
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With respect to this commenter's other issues concerning the
Director's authority, as we stated in our NPRM, we are 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. There must be a balance between procedural requirements and
agencies' substantive statutory authority and requirements. To achieve
this balance, we are issuing rules that require agencies to discuss how
IBR'd materials were made available to parties (including where those
materials are located) and to summarize those materials in the
preambles of their rulemaking documents. We added the summary
requirement, not as a replacement for access to the IBR'd standard, but
to give the public enough information to know if they need access to
the standard. We believe the requirements set out in this rule provide
flexibility needed for agencies to determine that IBR'd documents are
reasonably available.
Some commenters made a distinction between reasonably available at
different stages of rulemaking, suggesting that materials need to be
more widely available at no cost during the comment period of a
proposed rule.\38\ These commenters' suggested that reasonably
available would be more limited during the effective period of the
rule, in part to ease the burden on OFR resources.\39\ We disagree;
distinguishing between the proposed rule and final rule stages of
agency rulemakings will require development of a more elaborate
approval process that will place additional burdens on agency and OFR
staff. In the late 1970s we attempted a more complex approval process
that was too difficult to maintain so we revised the IBR approval
process in 1982.\40\
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\38\ OFR-2013-0001-0022 and OFR-2013-001-0007.
\39\ OFR-2013-001-0007 at page 3.
\40\ 47 FR 34108 (August 6, 1982).
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One commenter suggested that we provide a ``safe harbor'' by
declaring that any standards provided for free online are deemed
reasonably available by the Director.\41\ This commenter would place
the burden of proof on the agency to demonstrate that the materials
were reasonably available if they were not available for free online.
We decline to follow this suggestion; it creates an uncertainty in the
law because no one knows whether an IBR is enforceable or not. It is
not clear what would happen if the material was no longer available for
free online and the agency didn't certify that it was reasonably
available. Under ACFR regulations, we cannot amend another agency's CFR
provisions, so at best we would need to add an editorial note after
each CFR provision that included IBR'd material that was no longer
approved. We would also need to monitor all IBR's to ensure that some
information regarding the status of IBR'd materials were maintained.
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\41\ OFR-2013-001-0007 at page 6.
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At least 2 commenters complained that the proposed rule didn't
address
[[Page 66271]]
the reasonable availability of the standards once the final rules were
codified in the CFR. One commenter stated that ``the CFR has been
transformed from a mechanism to inform citizens into a profit
opportunity for a few private organizations.'' \42\ Another commenter
suggested that agencies post the text of the standards on their Web
sites to ensure that text of the IBR'd standards is available while the
rule is codified in the CFR.\43\ As an alternative, the commenter
states that materials could be posted on SDOs Web sites so long as
agencies certify, each year, that IBR'd materials are still on the SDOs
Web site.
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\42\ OFR-2013-0001-0012 at page 5.
\43\ OFR-2013-0001-0024.
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We note that even if agencies decide to repackage the text of
standards they wish to IBR, they must ensure that this repackaged text
meets the requirements in 51.7 and 51.9 or we will not approve the
agency's IBR request. As for the suggestion that agencies annually
certify that IBR materials are reasonably available--we have already
demonstrated that is not a viable option. From 1979 through 1982, we
approved material IBR'd on a yearly basis, as part of a comprehensive
review of all material IBR'd and a review of the overall approval
process.\44\ It soon became clear that a one-year review was neither
practical nor efficient. We chose not to extend the program but to
return to the original process. As we stated above, the orderly
codification requirements of the FRA and the ACFR prohibit us from
amending another agency's regulations so it is not clear how the
expiration of an IBR approval would be identified in the CFR without
undermining orderly codification and without returning to an approval
system that has already failed.
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\44\ 44 FR 18630, as corrected at 44 FR 19181.
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Access
Several commenters specifically discussed access as part of their
comments addressing reasonably available. Many commenters agreed with
the petitioners, stating that the law must be accessible and free to
use, therefore IBR'd standards should also be freely available to
anyone wishing to review them. One commenter stated that free access to
IBR'd standards strengthens the capacity of public interest groups to
engage in the rulemaking process and work on solutions to public policy
issues.\45\ Another stated that the public's right to access the
content of regulations, including IBR'd material, is ``a critical
safeguard to agency capture and other government issues.'' \46\ Other
commenters generally agreed with our NPRM, stating that reasonable
availability and transparency did not automatically mean free access
\47\ and supporting the idea that agencies need flexibility to work
with the SDOs to provide access to standards.\48\
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\45\ OFR-2013-0001-0031.
\46\ OFR-2013-0001-0029 at page 11.
\47\ OFR-2013-0001-0033.
\48\ OFR-2013-0001-0020 and OFR-2013-0001-0018.
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A number of SDOs commented specifically on access and discussed how
they make their standards available online.\49\ One stated that access
should not require the loss of copyright protection.\50\ One SDO board
stated that they make standards available in the following ways: Online
sales; classes; limited-time, no-cost, no-print electronic access;
membership in the organization, and the ability to request fee
waivers.\51\ Another standards organization stated that its standards
are available through third party vendors.\52\ It also stated that the
headings and outlines of its standards are freely available and that it
also provides read-only online access to its standards. Another also
stated that it provides no-cost read-only online access to its
standards and also provides scopes and summaries of each standard on
its Web site.\53\ One stated that access is important but shouldn't
undermine or dismantle the public-private partnership that currently
exists to create high-quality technical standards.\54\ To support
access and agency efforts to update standards referenced in
regulations, it makes immediate past versions of its standards
available for review in online in RealRead. Further, older standards
can be purchased and it will work with agencies to expand its titles in
RealRead.\55\
---------------------------------------------------------------------------
\49\ See, OFR-2013-001-0017, OFR-2013-001-0020, OFR-2013-001-
0027 and OFR-2013-001-0028.
\50\ OFR-2013-0001-0018.
\51\ OFR-2013-001-0023.
\52\ OFR-2013-001-0035.
\53\ OFR-2013-001-0025.
\54\ OFR-2013-0001-0028.
\55\ Id.
---------------------------------------------------------------------------
OFR applauds all the efforts of these private organizations to make
their IBR'd standards available to the public. We encourage agencies
and SDOs to continue to ensure access to IBR'd standards.
One commenter stated that summarizing the documents isn't enough;
regulated entities must have access to the actual documents and these
documents must be available free to the public in at least one location
as long as the rule is effective. Since it is hard to access the copies
at the National Archives, we require that agencies maintain a copy of
the documents they IBR. We retained the requirements in this rule that
agencies retain a copy of the IBR'd standard for inspection and provide
the OFR a copy of IBR standards.
Another commenter believed that access to standards on SDOs Web
sites is insufficient to meet the reasonably available requirement at
any stage of the rulemaking process because the SDO can remove the
standard or charge for access to it at any time.\56\ In addition, this
commenter believed that SDOs requirement that individuals sign a
release to access the read-only standard may deter the public or small
businesses from accessing standards. If the SDO does remove standards
from its Web site, the only option, according to this commenter, is to
travel to our offices in Washington, DC to review them.
---------------------------------------------------------------------------
\56\ OFR-2013-0001-0036. The commenter also asserted that the
SDO standards development processes doesn't balance all interests
reliably so the public needs complete access to the standards to
make sure the agencies are ``acting appropriately in relying upon
these standards.'' At page 5.
---------------------------------------------------------------------------
We have no authority to require SDOs to upload and maintain their
standards on their Web sites, and while this is one way to demonstrate
access, it is not the only way to show reasonable availability. To
improve access to standards and provide the public more information on
how to access the standards, this rule requires that agencies discuss
how the standards were made available during the life-cycle of the
rule. We also require that agencies provide a summary of the standard
in the preamble to allow readers to make their determination on whether
to access a standard to assist in drafting a comment on a particular
rulemaking project. We disagree with the commenter's assertion that the
only place interested parties can access standards, if they aren't
available online, is at our office in Washington, DC. As mentioned
above, we kept the requirement that agencies retain a copy of the IBR'd
standard for inspection and provide the OFR a copy of IBR'd standards.
Further, material remains available through SDOs and usually, if a
standard has been discontinued, through resellers.
Another commenter recommended that OFR adopt an IBR approval
program based on contingent approvals. The commenter suggested that
OFR's IBR approval be effective only as long as the standard is freely
available. If the public can't access a standard for free, then the IBR
approval ``would
[[Page 66272]]
evaporate.'' \57\ The standard would not be legally IBR'd and would be
unenforceable. The commenter stated that the statute doesn't prohibit
an approval that would be revoked automatically and that revocation
could be privately enforced by individuals using the Federal courts.
The commenter asserted that these contingent approvals would not drain
OFR resources because the revocation of the IBR approval would be
automatic and immediate. It would provide an incentive for both the
agencies and the SDOs to ensure continued free online access because
standards that weren't freely available online would not be
enforceable.
---------------------------------------------------------------------------
\57\ OFR-2013-0001-0004 at pages 4-5.
---------------------------------------------------------------------------
We disagree with these commenters' assertion that we can delegate
our enforcement authority to private entities without ``final reviewing
authority over the private party's actions.'' \58\ Even if we could, it
would create uncertainty in the law because no one would know whether
an IBR is effective and enforceable or not. There is no way we can
track and review all Federal court cases for IBR'd material. We also
can't resolve conflicts between Circuits. Finally, even with a
definitive court decision, we couldn't amend another agency's
regulations. So the system this commenter suggested is less transparent
and accessible than the current IBR approval process.
---------------------------------------------------------------------------
\58\ National Park and Conservation Ass'n v. Stanton, 54
F.Supp2d 7, 18 (D.D.C. 1999).
---------------------------------------------------------------------------
Costs of Standards
Several commenters discussed the costs of the standards in their
comments on our NPRM.\59\ Some raised concerns that SDOs were charging
monopoly prices for standards \60\ or using copyright as a device to
make money and fund SDO operations.\61\ Others were of the opinion that
any charge for an IBR'd standard effectively hides the law behind a pay
wall which is illegal and means the standard is not available.\62\ At
least one commenter stated that while there was a need to charge a
reasonable fee to recover printing costs, this no longer applies where
technology now enables the storage and retrieval of large amounts of
data at virtually no cost.\63\ This commenter suggested that giving the
public free access to the standards would not ``undermine incentives to
participate in the voluntary standards development process.'' \64\
---------------------------------------------------------------------------
\59\ At least 2 comments stated that FOIA envisioned that IBR'd
standards would be commercially available through a subscription
service, not held for individual sale, suggesting that purchasing a
subscription could be more affordable than purchasing each
individual standard, see OFR-2013-001-0024 and OFR-2013-001-0029. We
note that we received comments to our initial request for comments
on the petition that suggested obtaining access to subscriptions
services for certain IBR'd materials is not substantially cheaper
and sets up other road blocks for entities wishing to purchase only
one particular standard.
\60\ OFR-2013-001-0012.
\61\ OFR-2013-001-0019.
\62\ See generally, OFR-2013-001-0024, OFR-2013-001-0036, OFR-
2013-001-0029, OFR-2013-001-0004, OFR-2013-001-0021, and OFR-2013-
001-0037.
\63\ OFR-2013-001-0034.
\64\ OFR-2013-001-0034.
---------------------------------------------------------------------------
As we stated in our NPRM, these materials may not be as easily
accessible as the commenters 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.
A couple of commenters suggested that OFR needs to proceed with
caution and consider the costs of IBR'd standards, including extra
compliance costs for small businesses in highly regulated areas.\65\ At
least 2 commenters suggested that OFR must consider the cost of the
standard and the price of access, including the cost of travel to
Washington DC to examine the standard, when deciding whether to approve
an agency request to IBR standards.\66\
---------------------------------------------------------------------------
\65\ OFR-2013-001-0019 and OFR-2013-001-00319. See also OFR-
2013-001-0029, this commenter specifically referenced technical
standards, saying they must be available to the public, and stating
that the compliance obligations are same.
\66\ OFR-2013-001-0021.
---------------------------------------------------------------------------
Expanding on this idea, one commenter stated that OFR is allowing
agencies to IBR standards that must be purchased, therefore OFR needs
to make sure the regulatory requirements are set out in the rule in
enough detail that people can understand those requirements.\67\ This
commenter also insisted that, as part of the approval process, agencies
must state the cost of the standard before they receive approval and
certify that if the price changes or if the standard isn't available
the regulation is unenforceable to ensure the reasonable availability
of the IBR's standard during the entire lifecycle of the rule.\68\
---------------------------------------------------------------------------
\67\ OFR-2013-001-0029.
\68\ Id.
---------------------------------------------------------------------------
Another commenter stated generally that the cost of buying the
standard is less than the cost of complying with the regulation.\69\
One of these commenters stated that OFR needs to review the standards
for costs to the affected industries and look for any potential
conflicts in regulations along with formally defining ``reasonably
available.'' \70\
---------------------------------------------------------------------------
\69\ OFR-2013-001-0023.
\70\ OFR-2013-001-0023.
---------------------------------------------------------------------------
One commenter stated that free and online would compromise the
ability of regulators to rely on voluntary consensus standards.\71\
This commenter stated that revenue from sales, along with providing
salaries, benefits facilities, global development and training, and
also supports the broader mission of professional engineering societies
and funds research for standards and technology. Finally, this
commenter suggested that there may also be a potential downstream
impact threatening billions of dollars in global trade and the
development of internationally harmonized safety requirements.
---------------------------------------------------------------------------
\71\ OFR-2013-001-0038.
---------------------------------------------------------------------------
Another commenter supported purchasing standards at the final rule
stage.\72\ This commenter expressed concern that organizations that
rely on sales of standards may go out of business if they can't raise
revenue from sales of standards. The commenter noted that corporate
sponsors could be used to raise the revenue needed but that this might
lead to standards that favored the corporate sponsor, whereas obtaining
the revenue from the government could lead to the development of
standards based on politics.
---------------------------------------------------------------------------
\72\ OFR-2013-001-0022.
---------------------------------------------------------------------------
To address the concerns mentioned in comments from SDOs, one
commenter stated that the SDOs whose business models are based on sales
of their standards may have some negative economic impact in the short
term.\73\ This commenter saw no long term negative economic impact on
the SDOs, because requiring the standards to be posted as read-only
files still allows SDOs to sell hard copies as business will still need
to highlight and annotate the standard.\74\ Additionally, SDOs exist to
fill a business needs that are separate from government regulation and
these needs continue to exist even if read-only access is given to
standards. In cases where the standard wasn't developed to become part
of regulations, agencies should seek a license, although the commenter
admitted that the licensing fees could be cost- prohibitive for small
agencies.
---------------------------------------------------------------------------
\73\ OFR-2013-001-0029.
\74\ Id.
---------------------------------------------------------------------------
While technological (and publication) costs continue to decrease,
these
[[Page 66273]]
commenters addressed only the cost of making something available online
and did not address costs associated with creating the standard or
providing free access to it. OFR staff do not have the experience to
determine how costs factor into development of, or access to, a
standard for a particular regulated entity or industry. Thus, this rule
doesn't specifically address the costs associated with an IBR'd
standard, which allows the agencies flexibility to address cost
concerns when exercising their authority to issue regulations.
As we stated in our proposed rule, 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, the FOIA, nor the APA
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 of developing and
accessing the standard. Thus, we are requiring agencies to explain why
material is reasonably available and how to get it, and to summarize
the pertinent parts of the standard in the preamble of both proposed
and final rules.
Other Issues
a. Constitutional Issues
b. Copyright Issues
c. Outdated standards IBR'd into the CFR
d. Incorporation of guidance documents and the use of safe harbors
e. Indirect IBR'd standards
f. Data and studies used to create standards
g. Section-by-section analysis of the regulatory text
a. Constitutional Issues
A couple of commenters suggested that our proposal was
Constitutionally suspect, claiming that it violates Due Process, Equal
Protection, and First Amendment rights.\75\ They claimed that the
public's inability to access standards for free online creates due
process concerns, because due process requires notice of obligations
before the imposition of sanctions. Having to pay fees for standards
creates obstacles and impacts notice, which in turn creates due process
problems. They claimed there might be a First Amendment issue because
the public can't discuss or criticize regulations if they don't know
what they are. Finally they argued that equal protection and due
process are jeopardized when some people can purchase the law and
others can't. One commenter stated that access to the standards in
Washington, DC is not sufficient when the rule applies nationwide,
because people have to travel to DC to view the standard and traveling
costs money. Therefore, they argued, OFR needed to take those travel
costs into account when approving agency requests to incorporate
documents by reference into the CFR.
---------------------------------------------------------------------------
\75\ OFR-2013-0001-0029 and OFR-2013-0001-0036.
---------------------------------------------------------------------------
Constitutional issues were raised in earlier documents as well.
Commenters to the request for comments on the petition argued that the
government could simply exercise the Takings Clause of the 5th
Amendment.\76\
---------------------------------------------------------------------------
\76\ 78 FR 60791 (October 2, 2013).
---------------------------------------------------------------------------
While we don't speak for the Federal Government as a whole, we see
no reason why the government would exercise the Takings Clause.
However, we note that this rule continues to require that agencies
provide us a copy of all documents they wish to IBR into the CFR.
Agencies must also maintain at least one copy of all IBR'd standards
for public inspection at their agency. They must also provide their
contact information along with contact information for the OFR and the
standards' publishers in the regulatory text. Anyone can contact any of
these 3 groups with questions regarding access to the documents IBR'd
by an agency into the CFR, so access is not restricted to the Office of
the Federal Register in Washington, DC.
Further, nothing in this rule prevents the public from discussing
or criticizing any Federal regulations. By requiring agencies to add to
the preamble a discussion of how to examine or obtain copies of
standards referenced in their rulemaking documents, along with
summaries of those standards, we are ensuring that members of the
public have more information for determining if the summary is
sufficient or if they need (or just want) to contact the agencies with
questions on how to access the IBR'd standards.
b. Copyright Issues
Several commenters claimed that once a standard is IBR'd into a
regulation it becomes law and loses its copyright protection and,
therefore, that IBR'd standards must be available for free online
without any further discussion. Other commenters \77\ stated that the
public is the owner and author of the regulations and thus has the
right to know the law, relying on the Veeck case.\78\ At least one
commenter stated that the law is in the public domain and therefore not
``amenable to copyright.'' \79\
---------------------------------------------------------------------------
\77\ OFR-2013-0001-0029.
\78\ Veeck v. Southern Building Code Congress International,
Inc., 293 F.3d 791 (5th Cir. 2002).
\79\ OFR-2013-0001-0012.
---------------------------------------------------------------------------
Several commenters appeared to argue that the Veeck case
demonstrates that SDOs have survived and grown over the years despite
not having copyright protection awarded by a court because SDOs still
create and charge for standards even after the Veeck decision; that the
complexity of the modern age requires that agencies standardize across
the Federal government, thus compelling the use of standards; and that
SDOs can annotate their standards and charge fees for those
annotations. These commenters' conclusion seemed to be that SDOs will
continue to create standards and push for their incorporation into
Federal regulations. Therefore, OFR must require that only standards
available for free online are eligible for IBR approval.
One commenter referenced the NTTAA \80\ and stated that since this
statute says agencies shouldn't use standards in a way inconsistent
with applicable law, therefore if agencies can't use the standard
without violating copyright law, then the agency shouldn't IBR that
standard.\81\
---------------------------------------------------------------------------
\80\ 15 U.S.C. 3701 et seq.
\81\ OFR-2013-0001-0004.
---------------------------------------------------------------------------
As we stated in our NPRM, recent developments in Federal law,
including the Veeck decision \82\ and the amendments to FOIA, and the
NTTAA have not eliminated the availability of copyright protection for
privately developed codes and standards that are referenced in or
incorporated into federal regulations. Therefore, we cannot issue
regulations that could be interpreted as removing copyright protection
from IBR'd standards. We recommend that the responsible government
agency 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 final rule we require that
agencies discuss how the IBR'd standards are reasonably available to
commenters and to regulated entities. One way to make standards
reasonably available, if they aren't already, is to work with copyright
holders.
---------------------------------------------------------------------------
\82\ One commenter stated that OFR needs to show that the 5th
Circuit didn't consider specific arguments, and, that if we don't,
we can't reject the decision of the court. See OFR-2013-0001-0021.
We disagree.
---------------------------------------------------------------------------
One commenter stated that since it is the text of standards that
must be available (citing Veeck for the proposition that the law is not
subject to copyright law), agencies should copy the text of IBR'd
standards and place the
[[Page 66274]]
text online. In a footnote, the commenter suggested that OFR require
agencies to place the text of their ``regulatory obligations'' in their
online dockets. This way the ``text of the legal obligation and not the
standard as such'' is available online for free.\83\
---------------------------------------------------------------------------
\83\ OFR-2013-001-0024 footnote 23 at page 8.
---------------------------------------------------------------------------
We leave it to the agencies to determine if they should follow this
commenter's suggestion. We do note that agencies requesting IBR
approval must follow the requirements set out in part 51, including
Sec. 51.9, requiring very specific information about the standard, so
that the standard and ``regulatory obligations'' can be clearly
identified.
c. Outdated Standards IBR'd Into the CFR
A few commenters again 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. The orderly
codification requirements of the FRA and the ACFR prohibit us from
amending another agency's regulations,\84\ so we cannot take unilateral
action. Further, we don't have the authority to decide that a newer
version of a particular standard serves the same purpose as an older
version; that determination is solely for the agency. However, we
continue to provide support and assistance to agencies that are
implementing or updating regulations with IBR'd material. We contact
agencies and let them know if we hear from someone that a standard is
difficult to find. We also refer callers to our agency contacts.
---------------------------------------------------------------------------
\84\ 44 U.S.C. 1510 and 1 CFR part 21.
---------------------------------------------------------------------------
One commenter stated that two-thirds of IBR'd standards were
published in 1995 or earlier, thus, these standards are no longer
available except at the National Archives and Records
Administration.\85\ The commenter suggested that to address this issue
OFR needs to include a sunset provision in part 51 to limit the
duration of an IBR approval or to require that agencies certify for
each annual edition of the CFR that standards IBR'd are still
available. From 1979 through 1982, we approved material IBR'd on a
yearly basis, as part of a comprehensive review of all material IBR'd
and a review of the overall approval process.\86\ We initially
established the annual review for only 3 years, but it soon became
clear that a one-year review was neither practical nor efficient. We
chose not extend the program at the end of 3 years but to return
instead to the original process.\87\
---------------------------------------------------------------------------
\85\ OFR-2013-001-0024.
\86\ 44 FR 18630, as corrected at 44 FR 19181.
\87\ 47 FR 34108.
---------------------------------------------------------------------------
As we stated above, the orderly codification requirements of the
FRA and the ACFR prohibit us from amending another agency's regulations
\88\ so it is not clear how the expiration of an IBR approval would be
identified in the CFR without undermining orderly codification and
without returning to an approval system that has already failed.
---------------------------------------------------------------------------
\88\ OFR-2013-001-0024.
---------------------------------------------------------------------------
d. Incorporation of Guidance Documents and the Use of Safe Harbors
While some of the commenters approved of our proposal and its
rejection of the notion that IBR standards should be removed from
regulations and incorporated into agency guidance,\89\ one commenter
modified the argument and suggested that OFR needs to adopt the formal
stance that ``incorporated standards do not create legal obligations,
as such, rather identify appropriate means for achieving compliance
with regulatory requirements that are independently and fully stated in
public law.'' \90\ This commenter suggested that adopting this
proposition would bring our requirements in line with the European
Union's stance on incorporation by reference. The commenter then went
on to describe the way the EU countries develop standards and
recommended that the U.S. adopt that model of standards development.
However, the OFR has no statutory authority to completely change the
way standards are developed in the U.S. We continue to maintain that
the explicit statutory language of section 552(a) applies when agencies
request to IBR materials into the CFR. Therefore, we have no authority
to approve IBRs of standards into agency guidance documents.
---------------------------------------------------------------------------
\89\ OFR-2013-001-0030.
\90\ OFR-2013-001-0024 at page 2.
---------------------------------------------------------------------------
The commenter continued by stating that OFR cannot, in its
regulations, allow materials that are copyrighted to become binding
legal requirements through IBR. They also stated that OFR needs to
accept the IBR of guidance documents that are not legally binding and
limit the IBR'ing of required standards to ones that are available for
free online.\91\
---------------------------------------------------------------------------
\91\ Id. at page 2, OFR-2013-001-0004.
---------------------------------------------------------------------------
This commenter went on to state that section 552(a)(1) clearly
allows for the IBR of guidance documents, stating that ``part 51's
refusal to consider these IBRs is unprincipled and unjustified.'' \92\
This commenter then listed the merits of IBR'ing of guidance documents,
for example, no copyright issues and ease for agencies to update the
reference when the standards are updated.
---------------------------------------------------------------------------
\92\ Id. at page 3.
---------------------------------------------------------------------------
Agencies are not required to request IBR approval for guidance
documents referenced in their regulations. Currently, if materials that
are published elsewhere are referenced as guidance documents in
regulatory text or a CFR appendix, agencies are not required to submit
an IBR request; they must simply add information on how to obtain the
guidance material in the regulatory text. This requirement is less
stringent than IBR approval and we see no reason to change our policy
at this time. While this commenter is correct that in the past we have
approved IBR in limited instances for guidance documents, there has
never been a requirement in our regulations that guidance documents
must obtain IBR approval; that is because not all agency guidance
documents or the materials referenced in those documents are published
or referenced in the Federal Register. Regardless, any requests for IBR
must still meet the requirements of part 51 and any changes to the CFR
or a CFR appendix must publish in the Rules and Regulations section of
the Federal Register. That publication requirement will increase the
time it takes to update IBR'd guidance documents and may not provide
the flexibility to update guidance the commenter hoped for.
This commenter also suggested that we don't understand the law and
that we believe that guidance documents aren't regulatory.\93\ However,
we do understand the concept that guidance documents are not
requirements and if agencies try to enforce them as binding, private
entities can sue the agency.
---------------------------------------------------------------------------
\93\ Id. at page 8.
---------------------------------------------------------------------------
Both the FRA and the APA require that documents of general
applicability and legal effect be published in the Federal Register and
codified in the CFR. In general, agencies are not required to codify
their guidance documents, policy letters, or directives in the CFR and
thus, they might not be published in the Federal Register.\94\ Nor
[[Page 66275]]
are they required to formally request approval for standards referenced
in the CFR that are not binding requirements. OFR has long interpreted
section 552(a)'s use of the term ``affected'' to be related to binding
requirements that have an effect on parties. Thus, we haven't required
that references in the CFR to standards for guidance purposes go
through IBR approval. We do not have the staff or other resources
needed to approve IBR requests for documents that are guidance rather
than documents that are requirements. As we mentioned above, agencies
can already reference those documents in the CFR without going through
the formal IBR review process. Thus, is not clear why agencies would
need IBR approval for these non-regulatory documents.
---------------------------------------------------------------------------
\94\ 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.
---------------------------------------------------------------------------
One commenter stated that there is no distinction between a
regulatory standard and a safe harbor.\95\ This commenter stated that a
safe harbor in regulatory text will bind the agency to accept actions
that are within the safe harbor as compliance. Thus, the safe harbor
will dominate as the compliance method. Therefore, this commenter
believed that all requirements suggested for IBR'd standards (most
importantly that they must be available for free online) also apply to
safe harbors. We agree that this is a concern, however we don't see
that this specific issue is covered by part 51.
---------------------------------------------------------------------------
\95\ OFR-2013-0001-0029.
---------------------------------------------------------------------------
e. Indirect IBR'd Standards
At least 4 commenters raised the issue that some of the IBR'd
standards also reference other standards in their text. A couple of
these comments suggested that the OFR deny IBR approval unless all
standards are available for free online, including those referenced
within the standard the agency is seeking IBR approval for. At least,
one of the commenters stated that obtaining IBR'd material can cost
several thousands of dollars a year.
As we stated in our proposed rule, 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 (including material IBR'd) that 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 that material also has other materials included; 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.
What these commenters suggested would require that OFR
substantively review each standard IBR'd to determine if it references
other standards and then determine if those standards are required to
comply with the IBR'd standard and the agency's regulations. That is
beyond the authority and subject matter expertise of this office and
would increase the review time required to process IBR approval
requests. Therefore, we continue our practice of reviewing approval
requests only for standards directly IBR'd into the CFR.
f. Data and Studies Used To Create Standards
At least 2 commenters suggested that a condition of IBR approval
must be that data and studies relied on to create the standard must be
available for free online during the comment period of the NPRM, citing
Portland Cement Ass'n v. Ruckelshaus 486 F.2d 375 (DC Cir 1973). They
also stated that agencies should be required in their NPRM preambles to
``include specification of the means by which would-be commenters can
gain access to the studies and data on which the standard proposed to
be incorporated is based'' without incurring a significant fee.\96\
They claimed that without this requirement interested persons cannot
meaningfully comment on an agency's NPRM.
---------------------------------------------------------------------------
\96\ OFR-2013-0001-0024 and OFR-2013-0001-0029.
---------------------------------------------------------------------------
The APA, other statutory authorities, and case law have continually
stood for the proposition that the publishing agencies, not the OFR,
are responsible for ensuring that the public has appropriate
information to provide comments on their proposed rules. The task of
ensuring agencies provide access to data and to the studies that were
used to develop materials incorporated by reference is beyond our
statutory authority and resources. Therefore, we decline to revise the
regulations to require that the materials used to develop standards be
available for free online.
g. Section-by-Section Analysis of the Regulatory Text
Several commenters had comments on specific sections set out in our
NPRM. We address those comments by section below.
Section 51.1(b)
Some commenters suggested that we add the E-FOIA and the E-
Government Act \97\ to our list of authorities in Sec. 51.1(b),
claiming that our refusal to do so ``reveal[s] OFR's regrettable
indifference to the realities of the Information Age.'' \98\ It is not
clear where these commenters would have us reference these statutes.
Our statutory authority appropriately references section 552(a), which
grants the Director the authority to approve agency requests for IBR
into the CFR. If the commenters were focusing on the text of Sec.
51.1(b), what they fail to take into account is that this section
specifically lists authorities that directly relate to the requirement
that certain documents be published in the Federal Register. Paragraph
(b)(4) allows for us to review based on Acts other than the FRA that
require publication in the Federal Register. Since this paragraph
(b)(4) can be read broadly to include many different statutes, we do
not believe we need to specifically reference these statutes.
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\97\ Public Law 107-347 (2002).
\98\ OFR-2013-0001-0029.
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Section 51.1(e)
One commenter stated that paragraph (e) of Sec. 51.1 was confusing
because it states that use of the phrase ``incorporation by reference''
by itself does not mean the Director has approved an agency request for
incorporation by reference. The commenter suggested that this paragraph
be removed.
The CFR uses the phrase ``incorporation by reference'' throughout
its titles even when this phrase does not mean incorporation by
reference pursuant to section 552(a). For example, the Federal
Acquisition regulations in Title 48 of the CFR and 40 CFR 1502.21
(which discusses incorporating materials by reference into agency
environmental impact statements) both use the phrase ``incorporation by
reference'' in ways unrelated to the use of the ``incorporation by
reference'' described, in section 552(a). Paragraph (e) clarifies that
if the Director's
[[Page 66276]]
approval language is not linked to the IBR reference in the CFR, that
use of the term IBR has not been approved by the Director and may be
unrelated to section 552(a) and the regulations found in part 51.
Therefore, because this phrase is used in multiple ways in the CFR, we
decline to remove paragraph (e) from Sec. 51.1.
Section 51.5
One commenter, when discussing Sec. Sec. 51.3 and 51.5, stated
that our proposal would reduce ``reasonably available'' to formality
that doesn't encourage agencies to comply with section 552(a) or with 5
U.S.C. 553. They argued that OFR is not paying enough attention to the
public's ability to comment on NPRMs (other commenters also suggested
that the OFR should require rulemaking documents be understandable
without the need for the reader to rely on the IBR'd material \99\).
The commenter believed that a discussion of how the agency made the
material reasonably available doesn't go far enough. This commenter
recommended that we change the text to require that agencies explain
what they propose to require in their rulemaking. Along this same line,
another commenter wanted a detailed abstract of the IBR'd materials.
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\99\ See, OFR-2013-0001-00024 and OFR-2013-0001-00032. One
commenter alleges that it is a ``mere phantasm if the agency can
meet the requirement by stating that a copy of the publication has
been placed at the bottom of a locked filing cabinet . . .'', see
OFR-2013-0001-0037. We can't assume, as this commenter appears to
do, that agencies will willfully obstruct access to the standards
they've IBR'd.
---------------------------------------------------------------------------
It is the responsibility of the agency issuing the regulations to
ensure that it complies with the requirements of the APA. Our intent
with these changes is to provide the public more information regarding
standards IBR'd, both how to access these standards and to get a
summary of what the standard is about. The OFR can't ensure that every
agency complies with the requirements of the APA; we are not subject
matter experts in all areas of federal law so we can't make a
determination on whether an agency's preamble provides enough
information for the public to thoughtfully comment on agencies'
proposals. This commenter's suggested language would require OFR to do
a substantive review of all preambles in rulemakings where the agencies
propose to IBR materials into their regulations. This is beyond our
authority; we can't do it for documents without IBR and nothing in
section 552(a) gives us special authority to perform substantive
reviews of rulemaking documents with IBR.
One commenter expressed concerns that the requirement to summarize
standards in preambles is not specific enough. This commenter wanted
more specificity on what constitutes reasonable availability. The
commenter said that requiring too much detail is a problem, because the
summary doesn't replace the actual text of the standard and agencies
shouldn't be placed in a position to argue or litigate whether there
was enough detail in the summary. The summary should alert readers to
go to the standard. We agree that this summary of the standard needs to
give readers enough information to decide if they need to read the
standard for more detail or not, thus we kept the regulatory text
flexible to allow agencies to write these summaries in ways that best
meet the needs of their readers.
Another commenter, while agreeing that ``reasonably available''
might not mean free online, stated that it does mean more than the
agency simply having a copy available for examination in its
Washington, DC headquarters.\100\ This commenter stated that the OFR
needs to define reasonably available and let the public comment on that
proposed definition. It also stated that OFR needs to provide agencies
with guidance on how we expect them to comply with this requirements.
This commenter further urged that OFR define ``reasonably available''
differently, depending on where in the rulemaking process the
regulation is. Thus, this commenter recommended that ``reasonably
available'' be defined at the proposed rule stage to mean the material
proposed to be IBR'd be available to review for free online. At the
final rule stage, and while the rule is effective ``reasonably
available'' would mean that IBR'd material could be purchased from the
publisher.
---------------------------------------------------------------------------
\100\ OFR-2013-0001-0022.
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We decline to define ``reasonably available.'' Much like the
request to define ``class of persons affected,'' we are concerned that
any definition will fail because it is either too broad to be
meaningful or too restrictive, impeding agencies' ability to work with
SDOs and other publishers to make the material available to wide
audience either during the comment period of a proposed rule or while a
regulation is in effect. The absence of a too-broad or too-narrow
definition allows agencies to maintain flexibility in making IBR'd
materials ``reasonably available'' during the life-cycle of a
regulation and their regulatory programs on a case-by-case basis to
respond to specific situations.
Another commenter stated that the proposed regulatory text in Sec.
51.5 was too focused on the reasonable availability issue. This
commenter claimed that the NPRM suggests that there are ``varying
degrees'' of reasonable availability when in reality material is either
reasonably available or it is not.\101\ The commenter objected to the
proposed language in Sec. 51.5 because, the commenter claimed, that by
requiring agencies to discuss how they worked with publishers to make
material reasonably available, we are suggesting a link between
reasonably available and free online. This commenter recommended
changing the focus of the text from the reasonably available
requirement to instead require that agencies discuss all the factors
they considered, including availability, when proposing to IBR a
standard. The commenter believed that this language better articulates
federal policy.
---------------------------------------------------------------------------
\101\ OFR-2013-0001-0026.
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Section 552(a) specifically mentions reasonable availability
without addressing other factors agencies used to determine if they
wished to request IBR approval for particular standards. Therefore,
this section properly focuses on a discussion of how the materials are
available. Nothing in this rule prohibits agencies from discussing, in
their preambles, what factors they considered when determining if and
what materials they would request approval for. Thus, we decline to
revise this section to make this commenter's suggested changes.
One commenter stated that using the term ``or'' instead of ``and''
in the proposed rule text violates the statute because the material
must be made reasonably available under the statute.\102\ The commenter
continued, stating that it's the Director who determines reasonable
availability and not the agencies. Therefore, the proposed language
puts the reasonable availability determination on the wrong party. The
commenter assumes agencies will develop different criteria for
determining whether something is reasonably available. The NPRM stated
that agencies might not be able to IBR SDO standards if we require that
they be available for free; the commenter disagreed with this
statement.
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\102\ OFR-2013-0001-0021.
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We disagree with the commenter's assessment of this proposal. The
OFR (including the Director) does not have the subject matter expertise
or the familiarity with the affected parties to make a case-by-case
analysis of ``reasonable availability.'' We must rely on the analysis
of the agency. The revisions to this section now require
[[Page 66277]]
that agencies provide at least part of that analysis instead of simply
asserting that the material is ``reasonably available.'' Nothing in the
proposal removes the requirement that IBR'd materials be maintained at
the agency and at the OFR. And, the summary provides information to
people so they can determine if they want to review the IBR material at
the agency or the OFR or elsewhere.
One commenter supported our revisions to Sec. 51.5 because these
requirements will bring attention to the availability issue and
suggested that agencies will ``proactively seek to improve the
availability of IBR materials throughout the rulemaking process.''
\103\ This commenter recommended that OFR strengthen this provision by
removing the ``or'' and replacing it with an ``and.'' This would
require agencies to discuss both the substance of the standard and how
they worked to make the standard reasonably available. This
recommendation is also consistent with ACUS' recommendation 2011-
5.\104\
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\103\ OFR-2013-001-0030.
\104\ 77 FR 2257 (January 17, 2012).
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We agree that this provision should be strengthened so we replaced
the ``or'' with an ``and.'' And, we have removed the requirement that
the agency discuss, in the final rule, how the incorporated material
was reasonably available at the proposed rule stage. We require, at
both the proposed and final rule stages, that agencies include language
in their rulemaking preambles that both discuss the availability of the
standards and provide a summary of the standards themselves.
Section 51.7
At least 2 commenters suggested that we remove the requirement that
standards be technical in nature to receive IBR approval in an attempt
to limit the number of printed Federal Register and CFR pages.\105\ One
commenter also expressed a concern that by removing the requirement
that IBR'd standards must be technical in nature, OFR is allowing
agencies to remove essential requirements from the regulatory text so
that the legal obligation is hidden within the IBR'd standard merely to
save printed pages in the Federal Register. This commenter argued that
agency regulations need to be sufficiently and adequately set out to
allow the reader to know and be able to meet the regulatory
obligations. This commenter claimed that OFR needs to add a provision
to part 51 requiring that the IBR material be technical in nature and
that it supplement the regulatory text, not be a substitute for it. The
commenter also stated that OFR must review both the regulatory text and
the standards to ensure the IBR material doesn't replace the
requirements set out in regulatory text.
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\105\ OFR-2013-0001-0024 and OFR-2013-001-0029.
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This commenter was, in effect, suggesting that OFR conduct a
substantive review of both the regulatory text and the standards. A
review of this nature would require a substantive review of agency
regulations, something that is beyond our authority, so, while we
clarified Sec. 51.7(a)(2) to require that standards IBR'd be technical
standards, we decline to make these suggested changes that would
require us to review the materials to ensure that they didn't include
regulatory obligations not set out in the regulatory text.
Another concern raised by some of the commenters was that
completely removing the requirement that IBR standards be technical in
nature ``will spur further inappropriate incorporations by reference.''
\106\
---------------------------------------------------------------------------
\106\ OFR-2013-0001-0029.
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At least one other commenter specifically referenced Sec. 51.7(a)
and expressed concern that the proposal removed the requirement that
IBR'd standards be technical in nature. The commenter stated that this
requirement reduces the risk that agencies will IBR standards that are
regulatory in nature. This commenter suggested that the requirement was
the public-private equivalent of our prohibition on agencies IBR'ing
their own publications.
We understand these concerns regarding the proposed language, so we
modified the language in Sec. 51.7(a)(2) to retain the original
language of this paragraph, while modifying the structure to emphasize
that standards cannot detract from the Federal Register publication
system. So, much like our provision addressing agency-produced
documents, these changes allow us the flexibility to work with agencies
on the types of materials IBR'd.
There were a couple of commenters who specifically referenced
proposed revisions to Sec. 51.7, explaining what types of documents
are eligible for IBR approval. One commenter objected to the language
in Sec. 51.7(a)(3) claiming that OFR does not need to include
requirements for usability in the regulations because the requirements
seem print-focused and are irrelevant in the age of the Internet.
Despite the commenter's attempt to show that the OFR is out-of-
touch with the information age, we still receive hard copies of the
materials agencies IBR into the CFR. Thus, we decline to remove this
paragraph entirely. We have modified the language slightly with the
phrase ``as applicable'' to indicate to agencies that submit hard
copies of their IBR'd material this requirement still applies. Further,
the numbering and ordering requirement may still apply to electronic
material. We are not unduly focused on print publications, but until no
standards are available in print, we have to consider both print and
electronic publications.
Finally, we restructured paragraph (a) into a more logical order.
Regulatory Analysis
We developed this rule after considering numerous statutes and
Executive Orders related to rulemaking. Below is a summary of our
determinations with respect to this rulemaking proceeding.
Executive Orders 12866 and 13563
The rule was drafted in accordance with Executive Order 12866,
section 1(b), ``Principles of Regulation'' and Executive Order 13563
``Improving Regulation and Regulatory Review.'' We sent the rule to OMB
under section 6(a)(3)(E) of Executive Order 12866 and it was determined
to be a significant regulatory action as defined under section 3(f) of
Executive Order 12866.
Regulatory Flexibility Act
This rule will not have a significant impact on small entities
since it imposes requirements only on Federal agencies.\107\ 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.
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\107\ One commenter suggests that OFR needs to do a complete
regulatory flexibility analysis on the issues surrounding IBR within
the federal government, see OFR-2013-0001-0024 footnote 10 at page
4. Because the only new action in this rule is to require that
agencies provide more information in their preambles regarding
IBR'ing of standards we do not believe that it has a monetary impact
on small businesses or increases their burden. Therefore, we decline
to follow the commenter's suggestion.
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Federalism
This rule 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 rule is not a major rule as defined by 5 U.S.C. 804(2). We
will
[[Page 66278]]
submit a rule report, including a copy of this rule, 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 amends 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 as follows:
Authority: 5 U.S.C. 552(a).
0
2. Revise 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 51.5 to read as follows:
Sec. 51.5 How does an agency request approval?
(a) For a proposed rule, the agency does not request formal
approval but must:
(1) Discuss, in the preamble of the proposed rule, the ways that
the materials it proposes to incorporate by reference are reasonably
available to interested parties or how it worked to make those
materials reasonably available to interested parties; and
(2) Summarize, in the preamble of the proposed rule, the material
it proposes to incorporate by reference.
(b) For a final rule, the agency must request formal approval. The
formal request package must:
(1) Send a letter that contains a written request for approval at
least 20 working days before the agency intends to submit the final
rule document for publication;
(2) Discuss, in the preamble of the final rule, the ways that the
materials it incorporates by reference are reasonably available to
interested parties and how interested parties can obtain the materials;
(3) Summarize, in the preamble of the final rule, the material it
incorporates by reference;
(4) Send a copy of the final rule document that uses the proper
language of incorporation with the written request (See Sec. 51.9);
and
(5) Ensure that a copy of the incorporated material 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)(i) Is published data, criteria, standards, specifications,
techniques, illustrations, or similar material; and
(ii) Does not detract from the usefulness of the Federal Register
publication system; and
(3) Is reasonably available to and usable by the class of persons
affected. 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, as applicable.
* * * * *
0
5. In 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 Preamble requirements):
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 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).
Dated: November 3, 2014.
Amy P. Bunk,
Acting Director, Office of the Federal Register.
[FR Doc. 2014-26445 Filed 11-6-14; 8:45 am]
BILLING CODE 1505-02-P