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Input Sought on Federal Register Notice on Incorporation by Reference

ANSI to Develop Consensus Response on behalf of the Standardization Community

New York, Mar 01, 2012

On February 27, an Office of the Federal Register (OFR) notice called for public comment on a petition filed by a group of academics to amend the National Archives and Records Administration’s (NARA’s) regulations governing the approval of agency requests to incorporate by reference (IBR) materials into the Code of Federal Regulations. This issue impacts the standards community in a number of key ways, especially with respect to defining the “reasonable availability” of voluntary consensus standards that have been incorporated into regulation.

Given the importance of this issue, the American National Standards Institute (ANSI) will develop a consensus response on behalf of the standardization community. In order to have sufficient time to develop this consensus document, ANSI members are asked to consider the nine questions posed in the notice and reproduced below, and to submit any responses back to eneiman@ansi.org by Thursday, March 8.

Questions from the notice:

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 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?


ANSI also encourages individual companies and organizations to submit their own comments in direct response to the notice. Please note that final responses must be submitted to the Federal Register by March 28, 2012.

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