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Office of the Federal Register Issues Final Rule on Incorporation by Reference


The National Archives and Records Administration (NARA)’s Office of the Federal Register (OFR) has issued its final rule on issues related to incorporation by reference (IBR) of voluntary consensus standards into government laws and regulations.

The final rule states that agencies must set out the following information in the preambles of their rule making 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 they wish to incorporate by reference.

In its comments on the rule, OFR declined to strictly define “reasonable availability,” preferring instead to maintain flexibility and allow agencies to work directly with standards developing organizations (SDOs) and other publishers to make the material available. Further, OFR stated that requiring that all IBR-ed materials be available for free 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.”

The process began with a February 2012 petition calling for the amendment of OFR’s regulations regarding U.S. government agency requests to reference standards and other documents within the Code of Federal Regulations [see related story]. OFR opened a public comment period on the issue, kicking off an extensive national dialogue on the subject. For its part, the American National Standards Institute (ANSI) filed its own comments on behalf of the U.S. standardization community and invited stakeholders to discuss the issue at its 2012 Legal Issues Forum, part of the World Standards Week (WSW) series of events [see related story].

In October 2013, OFR issued a notice of proposed rulemaking and solicited public comments. Again, ANSI filed comments, reiterating its support for a flexible, multifaceted approach to making IBR standards reasonably available.

“As one of the biggest users of standards, the U.S. government’s participation in and support of standards development activities are of the utmost importance. ANSI finds the language in the final rule and in OFR’s discussion of comments to be supportive of the public-private partnership,” said S. Joe Bhatia, ANSI president and CEO.

“Along with our Federation of members, ANSI thanks OFR staff for their consideration of the viewpoints expressed by the standardization community, and for their comprehensive responses to the points that were raised by all commenters.”

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