Incorporation by Reference

Incorporation by reference allows agencies to fulfill their legal obligation to publish rules in the Code of Federal Regulations (CFR) by referring to standards or other materials that have been published elsewhere.  For example, when an agency adopts a standard created by a private standard-setting organization as a mandatory regulation, it typically publishes the standard by incorporating it by reference into the CFR.  Such incorporation by reference is common in part because federal policy requires regulatory agencies to use voluntary consensus standards in lieu of government unique standards where this is not impracticable or inconsistent with statutory mission. This policy builds upon Conference recommendation, No. 78-4, “Federal Agency Interaction with Private Standard-Setting Organizations in Health and Safety Regulations,” adopted in December 1978, which encourages the use of voluntary consensus standards in health and safety regulation.  In the more than thirty years since the Conference issued Recommendation No. 78-4, agencies have promulgated thousands of regulations that incorporate by reference standards published elsewhere.

Project Details: The Conference has examined legal and policy issues related to agency use of incorporation by reference.  The practice raises common issues that individual agencies deal with differently, and the aim of the Conference’s project was to consolidate the dispersed knowledge of affected agencies, identify best practices, and recommend ways to improve the process.  Specific challenges addressed include updating regulations that incorporate extrinsic materials by reference, ensuring access to referenced materials, addressing copyright issues that may arise, and finding ways to improve procedures for approving and managing regulations that incorporate other materials by reference.

Committee Meetings

The Committee on Administration and Management held meetings on September 21, 2011 and October 28, 2011 to discuss the Incorporation by Reference project.  Materials prepared or submitted for these two meeting are provided below.  The proposed recommendation adopted by the Committee was considered and approved at the Conference’s Plenary Session on December 8, 2011.

Final Recommendation

Recommendation 2011-5: Incorporation by Reference ()

Proposed Recommendations

Proposed Incorporation by Reference Recommendation for Consideration at the Plenary ()

Proposed Amendments for Plenary Consideration: Incorporation by Reference ()

Proposed Amendment to the Draft Recommendation for October 28 Meeting () 

Incorporation by Reference Draft Recommendation for October 28 Meeting () 

Incorporation by Reference Draft Recommendation Redline for October 28 Meeting () 

Reports

Second Draft Bremer Report on Incorporation by Reference ()

Redline of Second Draft Bremer Report on Incorporation by Reference ()

First Draft of Bremer Report on Incorporation by Reference ()

Minutes

Minutes of October 28 Meeting ()

Minutes of September 21 Meeting ()

Comments Received for Plenary

Cooney Comments on Proposed Strauss Amendment ()

GTW Associates Comments ()

IEEE Standards Association Comments ()

Statement from the Openness Community ()

Revised Strauss Comments ()

Revised Strauss Amendment ()

Follow-Up Comments Received From Peter Strauss ()

Comments Received from Peter Strauss ()

Michael Herz Comments ()

Gary Valasek Comments ()

Comments Received in Committee

Carl Malamud Comments for October 28 Meeting ()

Association of Research Libraries et al. Comments for October 28 Meeting ()

ASTM Comments for September 21 Meeting ()

NFPA Comments for September 21 Meeting ()

Jean Public Comments for September 21 Meeting ()

Carl Malamud Comments for September 21 Meeting ()

SAE Comments for September 21 Meeting ()

Watch our Webcasts

December 8, 2011 Plenary Session

October 28, 2011 Committee Meeting

September 21, 2011 Committee Meeting

How to RSVP for Committee Meetings

Members of the public are welcome to attend meetings in person, subject to space limitations. Please contact us at comments@acus.gov to RSVP.

How to Submit Comments

You may submit comments on project documents by email to comments@acus.gov or by sending your comments to the Administrative Conference’s office.  Please identify any submission with “Committee on Administration and Management Comment” in the title.  Please click here for the Conference’s public comment policy.

Contacts

Committee Chair
John Cooney
Partner, Venable LLP

In-House Researcher
Emily S. Bremer
202 . 480 . 2086
ebremer@acus.gov