Incorporation by Reference, Reasonable Availability, and the U.S. Standardization System
What Is Incorporation by Reference (IBR)?
The government uses voluntary consensus standards in a variety of ways, including to establish internal procedures, aid in developing regulations for public safety and
welfare, and improve the efficiency of the procurement process. When adopting a voluntary consensus standard into a regulation, federal agencies are permitted to
incorporate the standard by reference – that is, without publication of the standard itself – in the Code of Federal Regulations (CFR).
For a standard to be incorporated by reference or “IBR-ed,” the agency must determine that the standard is “reasonably available” to the class of
persons affected by the anticipated regulation.
What Does Reasonably Available Mean?
“Reasonably available” simply means that the standard is accessible to any potential user. It does not require that the standard be available without a fee.
Standards do not lose their copyright protection just by being referenced, and they can be made reasonably available in a number of different ways. For example, some
standards developing organizations (SDOs) make certain IBR-ed standards available on an online, read-only site – like the ANSI IBR Portal.
And many other SDOs make standards available at reasonable prices, at discounts, or without charge to consumers, policymakers, and small businesses. There is not one single
way to make standards reasonably available.
OMB Circular A-119 Revision
Office of the Federal Register / National Archives and Records Administration
American Bar Association Resolution on IBR
Copyright White Paper
Why Aren't Standards Free?
In the past few years, concerns have been raised about whether the “reasonably available” requirement should be changed in light of expectations of
free online access. All three branches of the government have joined the discussion in one way or another – whether via court cases, Congressional hearings, or
recommendations from Executive bodies or agencies.
As coordinator of the U.S. standardization system, ANSI has taken a lead role in informing government and industry about the economics of standards setting, the
importance of copyright protection of standards, and how altering this infrastructure would undermine U.S. competitiveness.
ANSI is working hard to broadly disseminate the important facts and potential consequences that must be considered in thinking about IBR and reasonable availability,
including the following:
- Every standard is a work of authorship and, under U.S. and international law, is copyright protected, giving the owner certain rights of control and remuneration that cannot be taken away without just compensation.
- Although many people working on standards development are volunteers, SDOs incur significant expenses in the coordination of these voluntary efforts.
From the time a new project is commenced until the final balloting and adoption of a standard, the drafting process draws heavily on an SDO’s administrative,
technical, and support services. Tens of thousands of staff employed by SDOs across the nation provide direct support for the technical development
activities of the volunteers.
- SDOs are – for the most part – non-profit organizations. In order to recoup their costs, some SDOs rely heavily on revenue from copyright-protected
sales and licensing of the standards. An SDO’s right to receive these revenues is based primarily in their copyright rights in the standard.
Without such copyright protections, many SDOs would not have the financial ability to continue their work.
Some organizations receive revenue through membership support including membership fees, project fees, registration fees, and other member-generated income. Still others rely on a combination of these and
other revenue-generating activities. By funding operations at least in part through sales and licensing of standards, SDOs can minimize barriers to qualified
participation and maximize independence from entities seeking to influence the outcome for commercial or political reasons.
Standards sales also
allow non-profit SDOs to recoup basic administrative costs while passing on to implementers all of the benefits of the voluntary and inclusive process of standards development,
including openness, balance, opportunities to participate, and protection from undue influence.
If SDOs cannot charge for standards and codes,
this disrupts the standards development ecosystem. The funding has to come from somewhere. Increasing participation fees to offset lost sales revenue would
disenfranchise consumers, small businesses, and local governments. Those with the money would have all the influence.
- Standards must be maintained and the publication kept up to date. This requires ongoing development, revision maintenance,
and administrative costs. The government and taxpayers benefit from the current system by not paying for these recurring development and administrative costs.
- If SDOs cannot afford to stay in business, safety standards would not be updated, with the potential for dangerous consequences. And standards for new
technologies would go unwritten, affecting U.S. competitiveness and innovation. The government would have to step up, take over what is now a market-driven
system, and somehow find the money, time, and expertise – for every single technology and industry area.
- Finally, decisions made about our national standardization system and our priorities for action reach far beyond our borders, especially when it comes to
the continued success of our products, services, and workforce on the global stage. Any decisions or actions that would fundamentally undermine this system will
cause the U.S. to lose this competitive advantage to other countries that would be quick to seize the opportunity. Additionally, significant
changes to the system would compromise the role that standards play in protecting health, safety, and the environment.
Ultimately, it’s important to realize that there is not “one solution to the access issue.” Reasonable availability is the best approach,
as it allows for the flexibility required by different industries, agencies, and SDOs. The public and private sectors should continue to make standards and codes
available on a reasonable basis. For some this may mean providing read-only but free access, and for others it may mean at reasonable prices.
The standardization community believes that the development of complex, highly specialized, technical standards requires a massive investment of time, labor,
expertise, and money. Federal agencies should continue to incorporate privately developed standards, eliminating costs of developing government-unique standards,
and benefitting our nation’s global competiveness, public safety, economic strength, and much more.
IBR-Related News and Events
For more information about IBR, the following links provide access to related news and events:
- American Bar Association Resolution on IBR Scheduled for August Vote
June 21, 2016
- ANSI Webinar Describes Key Changes to OMB Circular A-119, Slides and Recording Available
February 17, 2016
- Office of Management and Budget Releases Revised Circular A-119
January 28, 2016
- Office of the Federal Register Issues Final Rule on Incorporation by Reference
November 7, 2014
- ANSI Submits Feedback on Proposed Revision of OMB Circular A-119
May 6, 2014
- ANSI Seeks Input on Proposed Revisions to OMB A-119
February 12, 2014
- Office of Management and Budget Releases Proposed Update of Circular A-119 for Public Comment
February 10, 2014
- ANSI General Counsel to Testify Before Congress on Standards and Copyright Protection
January 13, 2014
- Standards, Incorporation by Reference, and Copyright Discussed before Congress
January 15, 2014
- ANSI Submits Response to Office of the Federal Register on Incorporation by Reference
January 3, 2014
- NARA Releases Response to Petition Regarding Incorporation by Reference
October 16, 2013
- Greater Standardization Community Addresses Incorporation by Reference, Other Mutual Objectives at 2013 ANSI Open Forum
October 16, 2013
- Government Reliance on Voluntary Standards and Conformance Programs Will Be the Focus of ANSI’s 2013 Open Forum
August 27, 2013
- Congressional Staffers Explore Standards and Conformance at ANSI-ACUS-NIST Event
June 12, 2013
- Experts Discuss Incorporation by Reference at the ANSI Legal Issues Forum
November 5, 2012
- ANSI Submits Comments to NARA on “Incorporation by Reference” Federal Register Notice
June 1, 2012
- U.S. Chamber and ACUS Host Implementation Summit on Incorporation by Reference and International Regulatory Cooperation
April 26, 2012
- Input Sought on Federal Register Notice on Incorporation by Reference
March 1, 2012
ANSI IBR Portal
ANSI has launched an online IBR Portal for the benefit of the user community, including consumers. The portal provides a voluntary,
centralized infrastructure that can help the hundreds of SDOs in the U.S. make their IBR-ed standards available in read-only format, should they wish to participate.
The ANSI IBR Portal provides a mechanism for access to standards that have been incorporated by reference in the U.S. Code of Federal Regulations (CFR).
These standards incorporated by the U.S. government in rulemakings are offered at no cost in “read only” format and are presented for online reading.
Standards available on the ANSI IBR Portal include those developed by the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC),
and other SDOs. In addition to the standards available directly through the portal, several SDOs are offering free access via their own websites.
Visit the ANSI IBR Portal