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.

Proposed Rules Federal Register

11414 

Vol. 77, No. 38 

Monday, February 27, 2012 

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. 

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: http:// 

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 webbased 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 

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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Proposed Rules 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 § 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.’’ § 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 preInternet age, in terms that plainly envision 

only print publication. Another element of 

your regulation, § 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 

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11416 Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Proposed Rules 

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 § 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 

§ 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2012–0183; Directorate 

Identifier 2011–NM–131–AD] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for certain 

The Boeing Company Model 737–600, 

–700, –700C, –800, –900, and –900ER 

series airplanes. This proposed AD was 

prompted by reports from the 

manufacturer that center overhead 

stowage (COS) boxes could fall from 

their supports under forward load levels 

less than the 9G forward load 

requirements as defined by Federal 

Aviation Regulations. This proposed AD 

would require modifying COS boxes by 

installing new brackets, stiffeners, and 

hardware as needed. We are proposing 

this AD to prevent detachment of COS 

boxes at forward load levels less than 

9G during an emergency landing, which 

would cause injury to passengers and/ 

or crew and could impede subsequent 

rapid evacuation. 

DATES: We must receive comments on 

this proposed AD by April 12, 2012. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

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