Incorporation by Reference, 11414-11416 [2012-4399]

Agencies

• National Archives and Records Administration
• Office of the Federal Register

[Federal Register Volume 77, Number 38 (Monday, February 27, 2012)]
[Proposed Rules]
[Pages 11414-11416]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4399]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / 
Proposed Rules

[[Page 11414]]



NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Office of the Federal Register

1 CFR Part 51

[NARA 12-0002]


Incorporation by Reference

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

ACTION: Announcement of a petition for rulemaking and request for 
comments.

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SUMMARY: On February 13, 2012, the Office of the Federal Register (OFR 
or we) received a petition to amend our regulations governing the 
approval of agency requests to incorporate material by reference into 
the Code of Federal Regulations. We've set out the petition in this 
document. We would like comments on the broad issues raised by this 
petition.

DATES: Comments must be received on or before March 28, 2012.

ADDRESSES: You may submit comments, identified using the subject line 
of this document, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: Fedreg.legal@nara.gov. Include the subject line of 
this document in the subject line of the message.
     Mail: the Office of the Federal Register (NF), The 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD.
     Hand Delivery/Courier: Office of the Federal Register, 800 
North Capitol Street NW., Suite 700, Washington, DC 20001.

Docket materials are available at the Office of the Federal Register, 
800 North Capitol Street NW., Suite 700, Washington, DC 20001, 202-741-
6030. Please contact the persons listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection of docket materials. The 
Office of the Federal Register's official hours of business are Monday 
through Friday, 8:45 a.m. to 5:15 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Amy Bunk, Director of Legal Affairs 
and Policy, or Miriam Vincent, Staff Attorney, Office of the Federal 
Register, at Fedreg.legal@nara.gov, or 202-741-6030.

SUPPLEMENTARY INFORMATION: We received a petition to revise our 
regulations at 1 CFR part 51 on February 13, 2012. The petition is set 
out below. It specifically requests that we amend our regulations to 
define ``reasonably available'' and to include several requirements 
related to the statutory obligation that material incorporated by 
reference (IBR) be reasonably available. The petition does not 
specifically request that we define ``class of persons affected''; 
however, it assumes that this term encompasses anyone who is interested 
in reviewing the material agencies want to IBR into their regulations. 
The petitioners did include specific regulatory changes, as an example 
of what our regulations could look like. They are not asking for 
adoption of this exact language, however, so we are not including that 
text here.
    We are requesting comments on the following issues:
    1. Does ``reasonably available''
    a. Mean that the material should be available:
    i. For free and
    ii. To anyone online?
    b. Create a digital divide by excluding people without Internet 
access?
    2. Does ``class of persons affected'' need to be defined? If so, 
how should it be defined?
    3. Should agencies bear the cost of making the material available 
for free online?
    4. How would this impact agencies budget and infrastructure, for 
example?
    5. How would OFR review of proposed rules for IBR impact agency 
rulemaking and policy, given the additional time and possibility of 
denial of an IBR approval request at the final rule stage of the 
rulemaking?
    6. Should OFR have the authority to deny IBR approval requests if 
the material is not available online for free?
    7. The Administrative Conference of the United States recently 
issued a Recommendation on IBR. 77 FR 2257 (January 17, 2012). In light 
of this recommendation, should we update our guidance on this topic 
instead of amending our regulations?
    8. Given that the petition raises policy rather than procedural 
issues, would the Office of Management and Budget be better placed to 
determine reasonable availability?
    9. How would an extended IBR review period at both the proposed 
rule and final rule stages impact agencies?

    Dated: February 21, 2012.
Michael L. White,
Acting Director, Office of the Federal Register.
Peter L. Strauss
Betts Professor of Law
435 West 116th Street
New York, N.Y. 10027
February 10, 2012

Office of the Federal Register (NF)
The National Archives and Records Administration
8601 Adelphi Road College Park,
MD 20740-6001

Gentlefolk,

    Pursuant to 5 U.S.C. 553(e), we hereby petition for amendment of 
1 CFR part 51, ``Incorporation by Reference'' to reflect the changed 
circumstances brought about by the information age. While it is only 
necessary to be an interested person to file such a petition, the 
undersigned include scholars of administrative law with particular, 
continuing interests in the avoidance of secret law and the 
development of the government's law-related Internet activities, the 
President of Public Resource.Org (an NGO dedicated to the creation 
of a free web-based database of privately developed standards 
treated as mandatory by governmental authorities), and practitioners 
of administrative law.
    1 CFR part 51 is your implementation of your responsibilities 
under 5 U.S.C. 552(a)(1), which provides in relevant part
    (1) Each agency shall separately state and currently publish in 
the Federal Register for the guidance of the public--
    (D) substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or 
interpretations of general applicability formulated and adopted by 
the agency; and
    (E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of 
the terms thereof, a person may not in any manner be required to 
resort to, or be adversely affected by, a matter required to be 
published in the Federal Register and not so published. For the 
purpose of this paragraph, matter reasonably available to the class 
of persons affected thereby is deemed published in the

[[Page 11415]]

Federal Register when incorporated by reference therein with the 
approval of the Director of the Federal Register.
    As the statute states, and 1 CFR 51.3 recognizes, each 
incorporation by reference must be actively and individually 
approved by the Director of the Federal Register, after stated 
requirements have been met. As 1 CFR 51.1(b) recognizes, it is for 
the Director to ``interpret and apply the language of action 
552(a)''; the whole of the regulation is, in effect, an 
interpretation of what it means for matter incorporated by reference 
to be ``reasonably available.'' However, this regulation has not 
been amended in any respect since its appearance Aug. 6, 1982 at 47 
FR 34108. Subsequent statutory and social developments have 
transformed what it might mean for matter to be ``reasonably 
available,'' and this petition seeks the redefinition of 
``reasonably available'' in the light of those changes. In the pre-
digital world, it may have seemed reasonable to require persons 
wishing to know the law governing their activities to pay private 
standard-setting organizations for access to standards made 
mandatory by government regulations incorporating those standards by 
reference. These standards were sometimes voluminous, could be 
presented only in print, and could be made available to concerned 
parties only at some expense to the provider. Developments in both 
law and technology over the last two decades have undermined that 
rationale, however, transforming what it should mean for these 
standards to be ``reasonably available.''
    In particular, when section 552(a)(1) was enacted and at the 
time 1 CFR part 51 was adopted, substantive rules of general 
applicability, statements of general policy or interpretations of 
general applicability, as well, could be made available to the 
public only in printed form. Since the ``published data, criteria, 
standards, specifications, techniques, illustrations, or similar 
material'' made eligible for incorporation by reference in Sec.  
51.7(a)(2) were often voluminous in character, permitting their 
incorporation by reference would ``[s]ubstantially reduce[] the 
volume of material published in the Federal Register.'' Sec.  
51.7(a)(3). That effect was the primary impetus for permitting 
incorporation by reference. Again, this effect has been eliminated 
by the implementation of agency electronic reading rooms, under 
which unlimited volumes of materials may be stored or hyperlinked, 
and made readily searchable by common web-based tools.
    Section 51.7(a)(4) of your regulations, defining eligibility for 
incorporation, today makes no effort to define ``reasonable 
availability.'' Although it conditions eligibility on whether the 
material to be incorporated ``[i]s reasonably available to and 
usable by the class of persons affected by the publication,'' it 
goes on to define only ``usability,'' and it does that for the pre-
Internet age, in terms that plainly envision only print publication. 
Another element of your regulation, Sec.  51.1(c)(1), provides that 
the terms of reference for the Director's determinations are whether 
incorporation ``is intended to benefit both the Federal Government 
and the members of the class affected.'' Although we understand that 
respect for standards organizations' copyrights may influence the 
Director's determination that incorporated material is ``reasonably 
available,'' this language invokes that interest only indirectly. In 
the Internet age, that interest needs to be directly considered, in 
relation to the need of the regulated and citizens alike to know 
standards that may be proposed, or are later adopted, to governing 
their conduct. The possibility of protecting copyright owners' 
financial interests in most uses of their standards by technical 
means (such as limited electronic access) is an appropriate element 
here, as is creating standards for ``reasonable availability'' that 
will maximize agency incentives to bargain hard over such licensing 
payments as might be appropriate.
    With the Electronic Freedom of Information Act of 1996, the 
Government Paperwork Elimination Act of 2000, and the E-Government 
Act of 2002, public availability of government records has moved 
decisively from print media to electronic reading rooms. Indeed, the 
Federal Register no longer needs to be printed, especially given 
Federal Register 2.0, and in any event reducing the volume of 
material in print in it is no longer an important consideration. 
While the CFR will doubtless remain in print, nonetheless the 
availability of materials incorporated by reference on government 
(or private) Web sites renders any concern about its volume also 
irrelevant to deciding whether material is ``reasonably available.'' 
Any agency publishing material to its electronic Web site, whether 
or not it is in print, will have made that material ``reasonably 
available.'' Indeed the obligations of E-FOIA for guidance material 
under 5 U.S.C. 552(a)(2) make this clear. Absent actual notice, 
agencies may not cite guidance materials adversely to private 
parties unless they have been posted in the agency's electronic 
library--and there is no ``reasonably available'' qualification to 
this obligation, only the possibility of redaction for privacy 
protection.
    These enactments and their impact are nowhere referenced or 
considered in part 51--as they could not have been when it was last 
considered, in 1982. They make plain the necessity that the Director 
reconsider the now antiquated regulations implementing 5 U.S.C. 
552(a)(1) and its criterion of reasonable availability, and in doing 
so assure Americans of ready access to the law that controls their 
conduct.
    A recent action by the Administrative Conference of the United 
States failed directly to address the Director's responsibility for 
shaping and administering the criterion of reasonable availability. 
However, the recommendation and its supporting report strongly 
suggest factors that should enter in:
    (1) Section 51 currently applies only to the publication of a 
final rule. However, notices of proposed rulemaking will often 
propose incorporation by reference, and public availability of 
materials is of special importance during the rulemaking stage to 
effectuate the APA's commitment (strongly reinforced by caselaw 
requiring agencies to reveal important data on which they may rely) 
to a meaningful public comment opportunity. The ready availability 
of materials proposed to be incorporated by reference, whether in 
FDMS, on an agency Web site, or on the Web site of a copyright 
holder (who may appropriately limit access to the comment period, 
and provide it only in read-only form), is essential to any ultimate 
determination that material that would otherwise be required to be 
placed in the body of a final rule is ``reasonably available'' to 
the concerned public and hence may be incorporated by reference. 
Here, particularly, the interests of a wide range of interests--
citizens, local governments, small businesses--may be implicated. 
Agencies seeking approval for incorporations by reference of 
voluntary consensus standards that are referred to in their notices 
of proposed rulemaking should be required to demonstrate the steps 
that they have taken to enable comment on those standards, as one 
element of reasonable availability.
    (2) The National Technology Transfer Act of 1995 and the 
implementing OMB Circular A-119 properly distinguish, as the 
literature does, between regulations affirmatively requiring a 
specified course of conduct, and standards that serve to indicate 
one means by which those requirements may be satisfied. The policy 
favoring incorporation by reference of voluntary consensus standards 
embodied in the NTTA and Circular A-119 is limited to ``standards'' 
in the latter sense. Yet the Report to ACUS details settings in 
which material incorporated by reference is itself taken as setting 
mandatory obligations. For example, OSHA treats as a violation of 
its regulations any departure from the form of warning placards 
detailed in certain standards it has incorporated by reference; it 
is merely a ``minor'' violation if, in departing from those forms, 
an employer has used warning placards suggested by subsequent 
voluntary consensus standards that OSHA has not yet incorporated by 
reference. ``Reasonable availability'' of mandatory standards in the 
age of the Internet requires their ready accessability in agency 
electronic reading rooms or, at the very least, in linked Web sites 
of standards organizations that provide at least free read-only 
access to those with a need to know the law governing their conduct 
or otherwise affecting them.
    (3) When agencies use incorporation by reference to create 
mandatory standards, the legality of charging the public for access 
to material incorporated by reference by the voluntary standards 
organizations that may have developed them, under copyright, is in 
serious doubt. Veeck v. S. Bldg. Code Cong. Int'l, 293 F.3d 791 (5th 
Cir. 2002). Free availability to the affected public of incorporated 
materials is of particular importance, as already suggested, when 
those materials create mandatory obligations whose violation could 
have adverse consequences, whether directly or on others whose 
interests may be affected by the behavior it controls. Measures such 
as the Unfunded Mandates Reform Act make plain that Congress has set 
its face against agency actions that export costs to others arguably 
unable to bear them. And in the age of information, secret law, that 
the public must pay for to know, is unacceptable. Today, binding law 
cannot be regarded as ``reasonably available'' if it

[[Page 11416]]

cannot freely be found in or through an agency's electronic library. 
Perhaps this would require agencies to pay license fees for their 
use of such standards--and if so, they would then have proper 
bargaining incentives to keep those fees low.
    Even should the Director disagree with this proposition--
erroneously in our view--he should then make the level and 
distribution of costs for access to materials incorporated by 
reference a necessary element of the determination whether they are 
reasonably available. Since having the Internet eliminates any 
concern about having to print excessive materials, protecting 
copyright interests is the only possible rationale for permitting 
incorporation by reference of materials members of the public might 
be required to pay to see. The criterion for reasonable 
availability, as Sec.  51.1(c)(1) recognizes, is whether 
incorporation by reference ``is intended to benefit both the Federal 
Government and the members of the class affected.'' Without doubt, 
the Government's interests are served by the work of voluntary 
standards organizations, yet the net benefits to the Federal 
Government of permitting incorporation by reference have been 
greatly reduced by today's possibilities for electronic publication. 
Benefit to the members of the class affected requires ready 
accessibility, whether by the presence of this material in agency 
electronic reading rooms or its accessibility on standards 
organization Web sites. Those benefits are reduced if they must be 
paid for--and high fees, particularly for local governments, small 
businesses and concerned citizens that may have a strong interest to 
know the governing law, will eliminate them. Any agency today 
proposing to export the costs of learning the law to those affected 
by it should, at the very least, be required to demonstrate its 
efforts to contain those costs (especially for small businesses, 
local governments, citizens, etc.) as a necessary element of 
demonstrating reasonable availability.
    For your convenience in understanding the changes sought by this 
petition, we set out in the pages following 1 CFR part 51 as it 
might appear if they were effected. For convenience, added language 
is italicized, and deleted language struck out. It is important to 
understand, however, that we are not asking for adoption of this 
exact language. Indeed, the bracketed language in Sec.  
51.7(a)(3)(i(C)) is language we would prefer not appear in the 
regulation, but reflects the maximum recognition of voluntary 
standards organizations' authority to charge the public for access 
to incorporated materials we would regard as tolerable. What is 
essential is that you now reconsider the antiquated provisions of 
this regulation in light of the changes wrought by the Information 
Age and federal statutes and policies building on it.
    As coordinator of this petition, Peter L. Strauss avers that 
each of the persons below has authorized him to include their name 
on this petition, with affiliations given for purposes of personal 
identification only.

    Respectfully submitted,

Peter L. Strauss
Betts Professor of Law
Columbia Law School

William R. Andersen
Judson Falknor Professor of Law Emeritus
University of Washington School of Law

Dominique Custos
Judge John D. Wessel Distinguished Professor of Law
Loyola University New Orleans College of Law

Cynthia Farina
Roberts Research Professor of Law
Cornell Law School

Tom Field
Professor of Law
University of New Hampshire School of Law

Philip J. Harter
Scholar in Residence, Vermont Law School
Earl F. Nelson Professor Emeritus, University of Missouri Law School

Linda Jellum
Assoc. Professor of Law
Mercer Law School

William S. Jordan III
Associate Dean and C. Blake McDowell Professor of Law
University of Akron School of Law

Patrick Luff
Visiting Professor of Law
Washington and Lee University School of Law

Carl Malamud, President
Public.Resource.Org

Jonathan Masur
Assistant Professor of Law
University of Chicago Law School

Nina Mendelson
Professor of Law
Michigan Law School

Anne Joseph O'Connell,
Professor of Law,
University of California, Berkeley

Craig Oren
Professor of Law
Rutgers University Law School, Camden

Robert C. Platt
Law Firm of Robert C Platt
Washington, DC

Todd Rakoff
Byrne Professor of Administrative Law
Harvard Law School

Joshua Schwartz
E.K. Gubin Professor of Government Contracts Law
George Washington University Law School

Peter Shane
Davis and Davis Professor of Law
Ohio State Law School

Sidney A. Shapiro
University Chair in Law, Wake Forest University
Vice-President, Center for Progressive Reform

Lea B. Vaughn
Professor of Law
University of Washington School of Law

cc: Hon. Susan Collins, Ranking Member
Committee on Homeland Security and Governmental Affairs
United States Senate

Hon. Patrick D. Gallagher, Director
National Institute of Science and Technology

Hon. John P. Holdren, Director
Office of Science and Technology Policy

Hon. Joseph Lieberman, Chair
Committee on Homeland Security and Governmental Affairs
United States Senate

Ms. Maria Pallante
Register of Copyrights
Library of Congress

Hon. Cass Sunstein, Director
Office of Information and Regulatory Analysis

Hon. Stephen Van Roekel,
Federal Chief Information Officer

Hon. Paul Verkuil, Chair
Administrative Conference of the United States

[FR Doc. 2012-4399 Filed 2-24-12; 8:45 am]
BILLING CODE 1505-02-P