This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

66267 

Vol. 79, No. 216 

Friday, November 7, 2014 

1 77 FR 11414 (February 27, 2012). 

2 77 FR 16761 (March 22, 2012). 

3http://www.archives.gov/federal-register/cfr/ibrlocations.html last visited August 11, 2014. 

4 78 FR 60784 (October 2, 2013). We extended the 

comment period on this proposal until January 31, 

2014. See, 78 FR 69006 (November 18, 2013) and 

78 FR 69594 (November 20, 2013). 

5Public Law 104–231 (1996). 

6 In fact, agencies were incorporating material by 

reference long before we were assigned the task of 

normalizing the process. 7NARA–12–0002–0002. 

OFFICE OF THE FEDERAL REGISTER 

1 CFR Part 51 

[Docket Number: OFR–2013–0001] 

RIN 3095–AB78 

Incorporation by Reference 

AGENCY: Office of the Federal Register, 

National Archives and Records 

Administration. 

ACTION: Final rule. 

SUMMARY: In this document, we are 

revising our regulations on 

incorporation by reference to require 

that agencies seeking the Director of the 

Federal Register’s approval of their 

incorporation by reference requests add 

more information regarding materials 

incorporated by reference to the 

preambles of their rulemaking 

documents. Specifically, agencies must 

set out, in the preambles of their 

proposed and final rules, a discussion of 

the actions they took to ensure the 

materials are reasonably available to 

interested parties and that they 

summarize the contents of the materials 

they wish to incorporate by reference. 

DATES: This rule is effective January 6, 

2015. 

ADDRESSES: You may find information 

on this rulemaking docket at Federal 

eRulemaking Portal: http://

www.regulations.gov. Docket materials 

are also available at the Office of the 

Federal Register, 800 North Capitol 

Street NW., Suite 700, Washington, DC 

20002, 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: 

Miriam Vincent, Staff Attorney, Office 

of the Federal Register, at Fedreg.legal@

nara.gov, or 202–741–6030. 

SUPPLEMENTARY INFORMATION: The Office 

of the Federal Register (OFR or we) 

published a request for comments on a 

petition to revise our regulations at 1 

CFR part 51 1 (part 51). The petition 

specifically requested that we amend 

our regulations to: (1) Define 

‘‘reasonably available’’ and (2) include 

several requirements related to the 

statutory obligation that material 

incorporated by reference (IBR) be 

reasonably available. Our original 

request for comments had a 30-day 

comment period. After requests from 

several interested parties, we extended 

the comment period until June 1, 2012.2

Our current regulations require that 

agencies provide us with the materials 

they wish to IBR. Once we approve an 

IBR request, we maintain the IBR’d 

materials in our library until they are 

accessioned to the National Archives 

and Records Administration (NARA) 

under our records schedule).3 NARA 

then maintains this material as 

permanent Federal records. 

We agreed that our regulations needed 

to be updated and published a proposed 

rule on October 2, 2013.4 However, we 

stated that the petitioners’ proposed 

changes to our regulations go beyond 

our statutory authority. The petitioners 

contended that changes in technology, 

including our new Web site 

www.federalregister.gov, along with 

electronic Freedom of Information Act 5

(E–FOIA) reading rooms, have made the 

print publication of the Federal Register 

unnecessary. They also suggested that 

the primary, original reason for allowing 

IBR was to limit the amount of material 

published in the Federal Register and 

Code of Federal Regulations (CFR).6 The 

petitioners argued that with the advent 

of the Internet and online access our 

print-focused regulations are out of date 

and obsolete. The petition then stated 

that statutory authority and social 

development since our current 

regulations were first issued require that 

material IBR’d into the CFR be available 

online and free of charge. 

The petition further suggested that 

our regulations need to apply at the 

proposed rule stage of agency 

rulemaking projects and that the 

National Technology Transfer and 

Advancement Act of 1995 (NTTAA) and 

the Office of Management and Budget’s 

(OMB) Circular A–119 distinguish 

between regulations that require use of 

a particular standard and those that 

‘‘serve to indicate that one of the ways 

in which a regulation can be met is 

through use of a particular standard 

favoring the use of standards as nonbinding ways to meet compliance.’’ 7 In 

addition, the petition argued that Veeck 

v. S. Bldg. Code Cong. Int’l, 293 F.3d 

791 (5th Cir. 2002) casts doubt on the 

legality of charging for standards IBR’d. 

Finally, the petition stated that in the 

electronic age the benefits to the federal 

government are diminished by 

electronic publication as are the benefits 

to the members of the class affected if 

they have to pay high fees to access the 

standards. Thus, agencies should at 

least be required to demonstrate how 

they tried to contain those costs. 

The petitioners proposed regulation 

text to enact their suggested revisions to 

part 51. The petitioners’ regulation text 

would require agencies to demonstrate 

that material proposed to be IBR’d in the 

regulation text was available throughout 

the comment period: (1) In the Federal 

Docket Management System (FDMS) in 

the docket for the proposal or interim 

rule; (2) on the agency’s Web site or; (3) 

readable free of charge on the Web site 

of the voluntary standards organization 

that created it during the comment 

period of a proposed rule or interim 

rule. The petition suggested revising 

§ 51.7—’’What publications are 

eligible’’—to limit IBR eligibility only to 

standards that are available online for 

free by adding a new (c)(3) that would 

ban any standard not available for free 

from being IBR’d. It also appeared to 

revise § 51.7(a)(2) to include documents 

that would otherwise be considered 

guidance documents. And, it would 

revise § 51.7(b) to limit our review of 

agency-created materials to the question 

of whether the material is available 

online. The petition would then revise 

§ 51.9 to distinguish between required 


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8See also 44 U.S.C. 4101. 

9See also 44 U.S.C. 4101. 

10 47 FR 34107 (August 6, 1982). 

11 44 U.S.C. 1505 and 1510. 

12 77 FR 11414 (February 27, 2012). 

13 78 FR 60784 (October 2, 2013). 

14 Veeck v. Southern Building Code Congress 

International, Inc., 293 F.3d 791 (5th Cir. 2002). 

standards and those that could be used 

to show compliance with a regulatory 

requirement. Finally, the petition would 

add a requirement that, in the electronic 

version of a regulation, any material 

IBR’d into that regulation be 

hyperlinked. 

The petitioners wanted us to require 

that: (1) All material IBR’d into the CFR 

be available for free online; and (2) the 

Director of the Federal Register (the 

Director) include a review of all 

documents that agencies list in their 

guidance, in addition to their 

regulations, as part of the IBR approval 

process. We find these requirements go 

beyond our statutory authority. Nothing 

in the Administrative Procedure Act 

(APA) (5 U.S.C. chapter 5), E–FOIA, or 

other statutes specifically address this 

issue. If we required that all materials 

IBR’d into the CFR be available for free, 

that requirement 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. 

Further, the petition didn’t address 

the Federal Register Act (FRA) (44 

U.S.C. chapter 15), which still requires 

print publication of both the Federal 

Register and the CFR, or 44 U.S.C. 4102, 

which allows the Superintendent of 

Documents to charge a reasonable fee 

for online access to the Federal 

electronic information, including the 

Federal Register.8 The petition 

suggested that the Director monitor 

proposed rules to ensure that the 

material proposed to be IBR’d is 

available during the comment period of 

a proposed rule. Then, once a rule is 

effective, we monitor the agency to 

ensure that the IBR’d materials remain 

available online. This requirement that 

OFR continue monitoring agency rules 

is well beyond the current resources 

available to this office. 

As for the petition’s limitation on 

agency-created material, the Freedom of 

Information Act (FOIA), at 5 U.S.C. 

552(a) (section 552(a)), mandates 

approval by the Director of material 

proposed for IBR to safeguard the 

Federal Register system. Thus, OFR 

regulations contain a provision that 

material IBR’d must not detract from the 

legal and practical attributes of that 

system.9 An implied presumption is 

that material developed and published 

by a Federal agency is inappropriate for 

IBR by that agency, except in limited 

circumstances. Otherwise, the Federal 

Register and CFR could become a mere 

index to material published elsewhere. 

This runs counter to the central 

publication system for Federal 

regulations envisioned by Congress 

when it enacted the FRA and the APA.10

Finally, the petition didn’t address 

the enforcement of these provisions. 

Agencies have the expertise on the 

substantive matters addressed by the 

regulations. To remove or suspend the 

regulations because the IBR’d material is 

no longer available online would create 

a system where the only determining 

factor for using a standard is whether it 

is available for free online. This would 

minimize and undermine the role of the 

Federal agencies who are the 

substantive subject matter experts and 

who are better suited to determine what 

standard should be IBR’d into the CFR 

based on their statutory requirements, 

the entities they regulate, and the needs 

of the general public. 

Additionally, the OFR’s mission 

under the FRA is to maintain orderly 

codification of agency documents of 

general applicability and legal effect.11

As set out in the FRA and the 

implementing regulations of the 

Administrative Committee of the 

Federal Register (ACFR) (found in 1 

CFR chapter I), only the agency that 

issues the regulations codified in a CFR 

chapter can amend those regulations. If 

an agency took the IBR’d material 

offline, OFR could only add an editorial 

note to the CFR explaining that the 

IBR’d material was no longer available 

online without charge. We could not 

remove the regulations or deny agencies 

the ability to issue or revise other 

regulations. Revising our regulations as 

proposed by the petition would simply 

add requirements that could not be 

adequately enforced and thus, likely 

wouldn’t be complied with by agencies. 

In our document announcing that we 

received a petition to revise our 

regulations in part 51, we specifically 

requested comments on nine issues.12

We received comments on each of those 

issues and addressed them in our 

NPRM.13

In our NPRM, we stated our concerns 

regarding several of the petitioners’ 

suggested revisions to our regulations. 

We stated that while OFR does have the 

authority to review NPRMs to ensure 

our publication requirements are met, a 

substantive review of IBR’d materials 

referenced in a proposed rule, as 

implied by the petition, is beyond our 

authority and resources. We also noted 

that the OFR has not reviewed IBR’d 

material in NPRMs for approval because 

agencies may decide to request approval 

for different standards at the final rule 

stage based on changed circumstances, 

including public comments on the 

NPRM, requiring a new approval at the 

final rule stage. Or, agencies could 

decide to withdraw the NPRM. These 

factors make review and approval at the 

proposed rule stage impractical. 

In our discussion of the copyright 

issues raised by the petitioners and 

commenters, we noted that recent 

developments in Federal law, including 

the Veeck decision 14 and the 

amendments to FOIA, and the NTTAA 

have not eliminated the availability of 

copyright protection for privately 

developed codes and standards 

referenced in or incorporated into 

federal regulations. Therefore, we 

agreed with commenters who said that 

when the Federal government references 

copyrighted works, those works should 

not lose their copyright. However, we 

believed the responsible government 

agency should collaborate with the 

standards development organizations 

(SDOs) and other publishers of IBR’d 

materials, when necessary, to ensure 

that the public does have reasonable 

access to the referenced documents. 

Therefore, we proposed in the NPRM to 

require that agencies discuss how the 

IBR’d standards are reasonably available 

to commenters and to regulated entities. 

One way to make standards reasonably 

available, if they aren’t already, is to 

work with copyright holders. 

We also proposed to review agency 

NPRMs to ensure that the agency 

provides either: (1) An explanation of 

how it worked to make the proposed 

IBR’d material reasonably available to 

commenters or; (2) a summary of the 

proposed IBR’d material. We proposed 

that agencies include a discussion in 

their final rule preambles regarding the 

ways it worked to make the 

incorporated materials available to 

interested parties. We stated that this 

process would not unduly delay 

publication of agency NPRMs or Final 

Rules and did not go beyond OFR’s 

statutory authority. 

Several commenters were concerned 

that our NPRM didn’t go far enough— 

specifically noting that the proposed 

rule wouldn’t require agencies to 

provide free access to standards 

incorporated by reference into the CFR. 

The issue of ‘‘reasonable availability’’ 

continued to elicit comments related to 

the NPRM and we will discuss this 

issue, along with other comments, 

below. 


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15OFR–2013–0001–0027. 

16 32 FR 7899 (June 1, 1967). 

17 Id. 

18 34 FR 19106 at 19115 (December 2, 1969). 

19 37 FR 6804 (April 4, 1972). 

20 Id. 

21 37 FR 6817 (April 4 1972). 

22OFR–2013–0001–0029 at page 13. 

23OFR–2013–0001–0029 at page 13. 

24OFR–2013–0001–0030. 

25OFR–2013–0001–0038. 

26OFR–2013–001–0029 at page 5. 

27OFR–2013–0001–0036, see also OFR–2013– 

0001–0029. 

28OFR–2013–0001–0037 at page 2. 

Based on comments to our NPRM, we 

have modified the regulation text 

slightly so that we now require that if 

agencies seek the Director’s approval of 

an IBR request, they must set out the 

following information in the preambles 

of their rulemaking 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 the agencies 

wish to IBR. 

Discussion of Comments 

Authority of the Director To Issue 

Regulations Regarding IBR 

One commenter again alleged that the 

OFR does not have the proper authority 

to amend the regulations in 1 CFR part 

51.15 As we stated in the NPRM, we 

disagree with the commenter. Because 

section 552(a) specifically states that the 

Director will approve agency requests 

for IBR and that material IBR’d is not set 

out in regulatory text, the Director has 

the sole authority to issue regulations 

governing the IBR-approval request 

procedures. We have maintained this 

position since the IBR regulations were 

first issued in the 1960’s. 

The regulations on the IBR approval 

process were first issued by the Director 

in 1967 and found at 1 CFR part 20.16

Even though this part was within the 

ACFR’s CFR chapter, the preamble to 

the document stated ‘‘the Director of the 

Federal Register hereby establishes 

standards and procedures governing his 

approval of instances of incorporation 

by reference.’’ 17 And, while these 

regulations appeared in the ACFR’s CFR 

chapter, this final rule was issued and 

signed solely by the Director. These 

regulations were later republished, 

along with the entire text of Chapter I, 

by the ACFR in 1969; 18 however the 

ACFR stated that the republication 

contained no substantive changes to the 

regulations. In 1972, the ACFR proposed 

a major substantive revision of Chapter 

I.19 In that proposed rule, the ACFR 

proposed removing the IBR regulations 

from Chapter I because ‘‘part 20. . . is 

a regulation of the Director of the 

Federal Register rather than the 

Administrative Committee.’’ 20 In that 

same issue of the Federal Register, the 

Director issued a proposed rule 

proposing to establish a new Chapter II 

in Title 1 of the CFR that governed IBR 

approval procedures.21 These proposals 

were not challenged on this issue, so the 

final rules removing regulations from 

the ACFR chapter and establishing a 

new chapter for the Director were 

published on November 4, 1972 at 37 

FR 23602 and 23614, respectively. Thus, 

it is appropriate for the Director, not the 

ACFR, to issue the regulations found in 

1 CFR part 51. 

As for this commenter’s concerns 

regarding following the rulemaking 

requirements, we believe that we have 

followed the proper rulemaking 

procedures as we are required to do and 

that we have taken into consideration 

the impact of our revisions on both 

federal agencies and the public. 

Class of Persons Affected 

A few commenters suggested that we 

define ‘‘class of persons affected’’ to 

mean all interested parties. At least one 

commenter claimed that section 552(a)’s 

reference to ‘‘class of persons affected’’ 

is broader than just those who must 

comply with the regulation—that it 

includes anyone with a ‘‘stake in the 

content of the IBR materials.’’ 22 The 

commenter based this claim on the 

phrase in the undesignated paragraph, 

which provides that if the document 

doesn’t publish in the Federal Register 

and the person doesn’t have actual 

notice of the document that person may 

be ‘‘adversely affected’’ by the agency 

document. This commenter claimed that 

this provision, along with the provision 

in 5 U.S.C. 702 (allowing persons who 

have been ‘‘adversely affected’’ by an 

agency action to seek judicial review), 

demonstrates that ‘‘class of persons 

affected,’’ as stated in the provision 

allowing IBR, should be read more 

broadly ‘‘to require availability to those 

simply ‘affected’ by the terms of the 

incorporated material.’’ 23

However, the IBR provision contains 

a slight language change that modifies 

‘‘affected’’ by adding the phrase ‘‘class 

of persons.’’ This addition could be read 

as an indication that the IBR material 

must be reasonably available to those 

who must directly comply with the 

regulation. Under the statute, it is 

acceptable to have material reasonably 

available beyond the class of persons 

affected but it is not required. 

We continue to have concerns that 

any definition will fail because it is 

either too broad to be meaningful or too 

restrictive to capture a total class. 

Therefore we decline to define the 

phrase ‘‘class of persons affected.’’ 

Thus, agencies maintain the flexibility 

to determine who is within the class of 

persons affected by a regulation or 

regulatory program on a case-by-case 

basis to respond to specific situations. 

Reasonably Available 

Several commenters agreed with the 

petitioners that reasonably available 

means for free to anyone online, but 

they provided little or no additional 

comment on this point. Many of the 

SDOs supported our proposal and 

discussed how they are already 

providing access to their standards that 

have been IBR’d. One commenter who 

supported our NPRM noted that 

reasonably available was highly contentdriven and felt the agency issuing the 

rule should ensure that the standards 

are reasonably available.24 Another 

agreed with our proposal, stating that 

agency subject matter experts are suited 

to determine if a standard should be 

IBR’d.25

However, some commenters alleged 

that the only way for OFR to meet its 

statutory obligation was to deny IBR 

approval for all standards there were not 

available for free online. A couple of 

commenters modified their stance and 

claimed that OFR has a duty to deny 

IBR approval for all standards that were 

not available at no cost to all interested 

persons. Another suggested that, 

because of the internet, reasonably 

available ‘‘with respect to the law must 

now be understood to mean available 

with not more than the minimal cost or 

effort required to travel to a public or 

government depository library.’’ 26

One commenter commented generally 

on the U.S. tradition to provide 

‘‘inexpensive and widespread access to 

the law.’’ 27 This tradition is tied to the 

current Administration’s goal of 

transparency and accountability. This 

commenter further stated that the 

government’s decision to regulate by 

incorporating expensive standards into 

regulations is similar to charging filing 

fees and poll taxes and sends a 

damaging message to the public. Other 

commenters suggested that our proposal 

unlawfully delegates the reasonably 

available determination to agencies. At 

least one commenter stated that OFR is 

bound by statute to ensure that 

materials are reasonably available 

‘‘regardless of the effect on the use of 

voluntary standards.’’ 28

Two other commenters vehemently 

argued that in order to be reasonably 


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29OFR–2013–001–0024 and OFR–2013–001– 

0029. 

30OFR–2013–001–0029. 

31OFR–2013–001–0029 at page 3. 

32OFR–2013–0001–0004. 

33 Id. At page 1. Citing Senator report No 88–1219 

at 4 (1964) and the 1967 Attorney General’s 

Memorandum on the Public Information Section of 

the Administrative Procedure Act (1967). 

34This commenter goes on to claim that OFR is 

wrong to assume that agencies would remove 

online access to IBR’d materials, while in the same 

comment, stating that the proposal provides 

agencies no practical incentive to make IBR’d 

materials reasonably available, implying that 

without OFR specifically requiring IBR’d materials 

be available for free online, agencies will do 

nothing to improve access to standards. 

35OFR–2013–0001–0004 at page 4. 

36 44 U.S.C. 1510. 

37 5 U.S.C. 552(a). 

38OFR–2013–0001–0022 and OFR–2013–001– 

0007. 

39OFR–2013–001–0007 at page 3. 

40 47 FR 34108 (August 6, 1982). 

41OFR–2013–001–0007 at page 6. 

available, IBR’d standards must be 

accessible to all interested parties.29

Both suggested that it is not enough to 

have material available to be examined 

at the OFR. One commenter was 

concerned that our proposal merely asks 

agencies how they worked with SDOs 

and other publishers on the access 

issue.30 This commenter went on to 

state that this requirement won’t 

provide more consistent availability of 

standards or ensure that the public has 

enough information to submit an 

effective comment. The commenter 

expressed concern that agencies may, in 

an effort to save money or time 

(negotiating with SDOs), decide that 

despite unsuccessful attempts to make a 

standard reasonably available, it would 

still request IBR approval, which we 

would grant. The commenter further 

stated ‘‘[a]t root then, access to all 

incorporated matter should be free, if 

the evils of ‘secret law’ OFR was 

established to resist are to be 

avoided.’’ 31

These commenters appeared to have a 

fundamental issue with agencies’ ability 

to IBR materials into the CFR. We 

decline to address whether or not 

agencies should be allowed to IBR 

materials into the CFR. This is beyond 

our authority. In this rule, we balanced 

our statutory obligations regarding 

reasonable availability of the standards 

with: (1) U.S. copyright law, (2) U.S. 

international trade obligations, and (3) 

agencies’ ability to substantively 

regulate under their authorizing 

statutes. To achieve this balance, this 

rule requires that agencies to discuss 

how IBR’d materials were made 

available to parties (and where those 

materials are located) and to provide a 

summary of those materials in the 

preambles of their rulemaking 

documents. These requirements oblige 

agencies to provide more information on 

how they made IBR’d material available 

and a summary of the material, so the 

readers can, if they like, find and review 

the standards. This rule continues to 

require that agencies provide the OFR 

with a copy of the standard and 

maintain a copy at the agency for public 

inspection; therefore we disagree that 

this rule is an unlawful delegation of 

authority to the agencies. 

Another commenter adamantly stated 

that the Director of the Federal Register 

has the sole authority to set procedures 

for the approval of agency requests for 

IBR. This commenter stated that 

‘‘reasonably available’’ is the sole 

statutory criterion for IBR approval so 

all other considerations must be 

considered secondarily.32 This 

commenter went on to state that it is not 

enough that agencies are required to 

simply announce the location of IBR’d 

material.33 The commenter added that 

our proposal won’t work, because 

requiring a summary of the standards in 

the preamble does nothing for interested 

parties 34 ‘‘and would simply represent 

another wasteful check-off process in 

the Federal Register publication 

process.’’ 35

It is unfortunate that this commenter 

believed that the publication 

requirements of the ACFR and Director 

(found in 1 CFR chapters I and II) are 

just wasteful check-off processes. The 

FRA established the ACFR, in part to 

provide that there was consistency on 

how agency documents publish in the 

Federal Register. When this Act was 

amended in 1938 to create the CFR, it 

provided that the ACFR would issue 

regulations to carry out the codification 

of agency documents of general 

applicability and legal affect.36 As 

discussed throughout this rule, the 

FOIA gave the Director the authority to 

approve agency requests to IBR 

materials into their regulations.37 Both 

the ACFR and the Director have 

throughout the years worked hard to 

ensure that the publication 

requirements they issue provide the 

agencies and the public clarity, 

uniformity, and consistency to maintain 

an orderly publication system for 

federal agency documents and minimize 

busy work for the agencies. 

With respect to this commenter’s 

other issues concerning the Director’s 

authority, as we stated in our NPRM, we 

are a procedural agency. We do not have 

the subject matter expertise (technical or 

legal) to tell another agency how they 

can best reach a rulemaking decision. 

There must be a balance between 

procedural requirements and agencies’ 

substantive statutory authority and 

requirements. To achieve this balance, 

we are issuing rules that require 

agencies to discuss how IBR’d materials 

were made available to parties 

(including where those materials are 

located) and to summarize those 

materials in the preambles of their 

rulemaking documents. We added the 

summary requirement, not as a 

replacement for access to the IBR’d 

standard, but to give the public enough 

information to know if they need access 

to the standard. We believe the 

requirements set out in this rule provide 

flexibility needed for agencies to 

determine that IBR’d documents are 

reasonably available. 

Some commenters made a distinction 

between reasonably available at 

different stages of rulemaking, 

suggesting that materials need to be 

more widely available at no cost during 

the comment period of a proposed 

rule.38 These commenters’ suggested 

that reasonably available would be more 

limited during the effective period of 

the rule, in part to ease the burden on 

OFR resources.39 We disagree; 

distinguishing between the proposed 

rule and final rule stages of agency 

rulemakings will require development 

of a more elaborate approval process 

that will place additional burdens on 

agency and OFR staff. In the late 1970s 

we attempted a more complex approval 

process that was too difficult to 

maintain so we revised the IBR approval 

process in 1982.40

One commenter suggested that we 

provide a ‘‘safe harbor’’ by declaring 

that any standards provided for free 

online are deemed reasonably available 

by the Director.41 This commenter 

would place the burden of proof on the 

agency to demonstrate that the materials 

were reasonably available if they were 

not available for free online. We decline 

to follow this suggestion; it creates an 

uncertainty in the law because no one 

knows whether an IBR is enforceable or 

not. It is not clear what would happen 

if the material was no longer available 

for free online and the agency didn’t 

certify that it was reasonably available. 

Under ACFR regulations, we cannot 

amend another agency’s CFR provisions, 

so at best we would need to add an 

editorial note after each CFR provision 

that included IBR’d material that was no 

longer approved. We would also need to 

monitor all IBR’s to ensure that some 

information regarding the status of 

IBR’d materials were maintained. 

At least 2 commenters complained 

that the proposed rule didn’t address 


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42OFR–2013–0001–0012 at page 5. 

43OFR–2013–0001–0024. 

44 44 FR 18630, as corrected at 44 FR 19181. 

45OFR–2013–0001–0031. 

46OFR–2013–0001–0029 at page 11. 

47OFR–2013–0001–0033. 

48OFR–2013–0001–0020 and OFR–2013–0001– 

0018. 

49See, OFR–2013–001–0017, OFR–2013–001– 

0020, OFR–2013–001–0027 and OFR–2013–001– 

0028. 

50OFR–2013–0001–0018. 

51OFR–2013–001–0023. 

52OFR–2013–001–0035. 

53OFR–2013–001–0025. 

54OFR–2013–0001–0028. 

55 Id. 

56OFR–2013–0001–0036. The commenter also 

asserted that the SDO standards development 

processes doesn’t balance all interests reliably so 

the public needs complete access to the standards 

to make sure the agencies are ‘‘acting appropriately 

in relying upon these standards.’’ At page 5. 

the reasonable availability of the 

standards once the final rules were 

codified in the CFR. One commenter 

stated that ‘‘the CFR has been 

transformed from a mechanism to 

inform citizens into a profit opportunity 

for a few private organizations.’’ 42

Another commenter suggested that 

agencies post the text of the standards 

on their Web sites to ensure that text of 

the IBR’d standards is available while 

the rule is codified in the CFR.43 As an 

alternative, the commenter states that 

materials could be posted on SDOs Web 

sites so long as agencies certify, each 

year, that IBR’d materials are still on the 

SDOs Web site. 

We note that even if agencies decide 

to repackage the text of standards they 

wish to IBR, they must ensure that this 

repackaged text meets the requirements 

in 51.7 and 51.9 or we will not approve 

the agency’s IBR request. As for the 

suggestion that agencies annually certify 

that IBR materials are reasonably 

available—we have already 

demonstrated that is not a viable option. 

From 1979 through 1982, we approved 

material IBR’d on a yearly basis, as part 

of a comprehensive review of all 

material IBR’d and a review of the 

overall approval process.44 It soon 

became clear that a one-year review was 

neither practical nor efficient. We chose 

not to extend the program but to return 

to the original process. As we stated 

above, the orderly codification 

requirements of the FRA and the ACFR 

prohibit us from amending another 

agency’s regulations so it is not clear 

how the expiration of an IBR approval 

would be identified in the CFR without 

undermining orderly codification and 

without returning to an approval system 

that has already failed. 

Access 

Several commenters specifically 

discussed access as part of their 

comments addressing reasonably 

available. Many commenters agreed 

with the petitioners, stating that the law 

must be accessible and free to use, 

therefore IBR’d standards should also be 

freely available to anyone wishing to 

review them. One commenter stated that 

free access to IBR’d standards 

strengthens the capacity of public 

interest groups to engage in the 

rulemaking process and work on 

solutions to public policy issues.45

Another stated that the public’s right to 

access the content of regulations, 

including IBR’d material, is ‘‘a critical 

safeguard to agency capture and other 

government issues.’’ 46 Other 

commenters generally agreed with our 

NPRM, stating that reasonable 

availability and transparency did not 

automatically mean free access 47 and 

supporting the idea that agencies need 

flexibility to work with the SDOs to 

provide access to standards.48

A number of SDOs commented 

specifically on access and discussed 

how they make their standards available 

online.49 One stated that access should 

not require the loss of copyright 

protection.50 One SDO board stated that 

they make standards available in the 

following ways: Online sales; classes; 

limited-time, no-cost, no-print 

electronic access; membership in the 

organization, and the ability to request 

fee waivers.51 Another standards 

organization stated that its standards are 

available through third party vendors.52

It also stated that the headings and 

outlines of its standards are freely 

available and that it also provides readonly online access to its standards. 

Another also stated that it provides nocost read-only online access to its 

standards and also provides scopes and 

summaries of each standard on its Web 

site.53 One stated that access is 

important but shouldn’t undermine or 

dismantle the public-private partnership 

that currently exists to create highquality technical standards.54 To 

support access and agency efforts to 

update standards referenced in 

regulations, it makes immediate past 

versions of its standards available for 

review in online in RealRead. Further, 

older standards can be purchased and it 

will work with agencies to expand its 

titles in RealRead.55

OFR applauds all the efforts of these 

private organizations to make their 

IBR’d standards available to the public. 

We encourage agencies and SDOs to 

continue to ensure access to IBR’d 

standards. 

One commenter stated that 

summarizing the documents isn’t 

enough; regulated entities must have 

access to the actual documents and 

these documents must be available free 

to the public in at least one location as 

long as the rule is effective. Since it is 

hard to access the copies at the National 

Archives, we require that agencies 

maintain a copy of the documents they 

IBR. We retained the requirements in 

this rule that agencies retain a copy of 

the IBR’d standard for inspection and 

provide the OFR a copy of IBR 

standards. 

Another commenter believed that 

access to standards on SDOs Web sites 

is insufficient to meet the reasonably 

available requirement at any stage of the 

rulemaking process because the SDO 

can remove the standard or charge for 

access to it at any time.56 In addition, 

this commenter believed that SDOs 

requirement that individuals sign a 

release to access the read-only standard 

may deter the public or small businesses 

from accessing standards. If the SDO 

does remove standards from its Web 

site, the only option, according to this 

commenter, is to travel to our offices in 

Washington, DC to review them. 

We have no authority to require SDOs 

to upload and maintain their standards 

on their Web sites, and while this is one 

way to demonstrate access, it is not the 

only way to show reasonable 

availability. To improve access to 

standards and provide the public more 

information on how to access the 

standards, this rule requires that 

agencies discuss how the standards 

were made available during the lifecycle of the rule. We also require that 

agencies provide a summary of the 

standard in the preamble to allow 

readers to make their determination on 

whether to access a standard to assist in 

drafting a comment on a particular 

rulemaking project. We disagree with 

the commenter’s assertion that the only 

place interested parties can access 

standards, if they aren’t available 

online, is at our office in Washington, 

DC. As mentioned above, we kept the 

requirement that agencies retain a copy 

of the IBR’d standard for inspection and 

provide the OFR a copy of IBR’d 

standards. Further, material remains 

available through SDOs and usually, if 

a standard has been discontinued, 

through resellers. 

Another commenter recommended 

that OFR adopt an IBR approval 

program based on contingent approvals. 

The commenter suggested that OFR’s 

IBR approval be effective only as long as 

the standard is freely available. If the 

public can’t access a standard for free, 

then the IBR approval ‘‘would 


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66272 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

57OFR–2013–0001–0004 at pages 4–5. 58National Park and Conservation Ass’n v. 

Stanton, 54 F.Supp2d 7, 18 (D.D.C. 1999). 59At least 2 comments stated that FOIA 

envisioned that IBR’d standards would be 

commercially available through a subscription 

service, not held for individual sale, suggesting that 

purchasing a subscription could be more affordable 

than purchasing each individual standard, see 

OFR–2013–001–0024 and OFR–2013–001–0029. We 

note that we received comments to our initial 

request for comments on the petition that suggested 

obtaining access to subscriptions services for 

certain IBR’d materials is not substantially cheaper 

and sets up other road blocks for entities wishing 

to purchase only one particular standard. 

60OFR–2013–001–0012. 

61OFR–2013–001–0019. 

62See generally, OFR–2013–001–0024, OFR– 

2013–001–0036, OFR–2013–001–0029, OFR–2013– 

001–0004, OFR–2013–001–0021, and OFR–2013– 

001–0037. 

63OFR–2013–001–0034. 64OFR–2013–001–0034. 65OFR–2013–001–0019 and OFR–2013–001– 

00319. See also OFR–2013–001–0029, this 

commenter specifically referenced technical 

standards, saying they must be available to the 

public, and stating that the compliance obligations 

are same. 66OFR–2013–001–0021. 67OFR–2013–001–0029. 68 Id. 69OFR–2013–001–0023. 

70OFR–2013–001–0023. 

71OFR–2013–001–0038. 

72OFR–2013–001–0022. 

73OFR–2013–001–0029. 

74 Id. 

evaporate.’’ 57 The standard would not 

be legally IBR’d and would be 

unenforceable. The commenter stated 

that the statute doesn’t prohibit an 

approval that would be revoked 

automatically and that revocation could 

be privately enforced by individuals 

using the Federal courts. The 

commenter asserted that these 

contingent approvals would not drain 

OFR resources because the revocation of 

the IBR approval would be automatic 

and immediate. It would provide an 

incentive for both the agencies and the 

SDOs to ensure continued free online 

access because standards that weren’t 

freely available online would not be 

enforceable. 

We disagree with these commenters’ 

assertion that we can delegate our 

enforcement authority to private entities 

without ‘‘final reviewing authority over 

the private party’s actions.’’ 58 Even if 

we could, it would create uncertainty in 

the law because no one would know 

whether an IBR is effective and 

enforceable or not. There is no way we 

can track and review all Federal court 

cases for IBR’d material. We also can’t 

resolve conflicts between Circuits. 

Finally, even with a definitive court 

decision, we couldn’t amend another 

agency’s regulations. So the system this 

commenter suggested is less transparent 

and accessible than the current IBR 

approval process. 

Costs of Standards 

Several commenters discussed the 

costs of the standards in their comments 

on our NPRM.59 Some raised concerns 

that SDOs were charging monopoly 

prices for standards 60 or using 

copyright as a device to make money 

and fund SDO operations.61 Others were 

of the opinion that any charge for an 

IBR’d standard effectively hides the law 

behind a pay wall which is illegal and 

means the standard is not available.62 At 

least one commenter stated that while 

there was a need to charge a reasonable 

fee to recover printing costs, this no 

longer applies where technology now 

enables the storage and retrieval of large 

amounts of data at virtually no cost.63

This commenter suggested that giving 

the public free access to the standards 

would not ‘‘undermine incentives to 

participate in the voluntary standards 

development process.’’ 64

As we stated in our NPRM, these 

materials may not be as easily accessible 

as the commenters would like, but they 

are described in the regulatory text in 

sufficient detail so that a member of the 

public can identify the standard IBR’d 

into the regulation. OFR regulations also 

require that agencies include publisher 

information and agency contact 

information so that anyone wishing to 

locate a standard has contact 

information for the both the standard’s 

publisher and the agency IBRing the 

standard. 

A couple of commenters suggested 

that OFR needs to proceed with caution 

and consider the costs of IBR’d 

standards, including extra compliance 

costs for small businesses in highly 

regulated areas.65 At least 2 commenters 

suggested that OFR must consider the 

cost of the standard and the price of 

access, including the cost of travel to 

Washington DC to examine the 

standard, when deciding whether to 

approve an agency request to IBR 

standards.66

Expanding on this idea, one 

commenter stated that OFR is allowing 

agencies to IBR standards that must be 

purchased, therefore OFR needs to make 

sure the regulatory requirements are set 

out in the rule in enough detail that 

people can understand those 

requirements.67 This commenter also 

insisted that, as part of the approval 

process, agencies must state the cost of 

the standard before they receive 

approval and certify that if the price 

changes or if the standard isn’t available 

the regulation is unenforceable to 

ensure the reasonable availability of the 

IBR’s standard during the entire 

lifecycle of the rule.68

Another commenter stated generally 

that the cost of buying the standard is 

less than the cost of complying with the 

regulation.69 One of these commenters 

stated that OFR needs to review the 

standards for costs to the affected 

industries and look for any potential 

conflicts in regulations along with 

formally defining ‘‘reasonably 

available.’’ 70

One commenter stated that free and 

online would compromise the ability of 

regulators to rely on voluntary 

consensus standards.71 This commenter 

stated that revenue from sales, along 

with providing salaries, benefits 

facilities, global development and 

training, and also supports the broader 

mission of professional engineering 

societies and funds research for 

standards and technology. Finally, this 

commenter suggested that there may 

also be a potential downstream impact 

threatening billions of dollars in global 

trade and the development of 

internationally harmonized safety 

requirements. 

Another commenter supported 

purchasing standards at the final rule 

stage.72 This commenter expressed 

concern that organizations that rely on 

sales of standards may go out of 

business if they can’t raise revenue from 

sales of standards. The commenter 

noted that corporate sponsors could be 

used to raise the revenue needed but 

that this might lead to standards that 

favored the corporate sponsor, whereas 

obtaining the revenue from the 

government could lead to the 

development of standards based on 

politics. 

To address the concerns mentioned in 

comments from SDOs, one commenter 

stated that the SDOs whose business 

models are based on sales of their 

standards may have some negative 

economic impact in the short term.73

This commenter saw no long term 

negative economic impact on the SDOs, 

because requiring the standards to be 

posted as read-only files still allows 

SDOs to sell hard copies as business 

will still need to highlight and annotate 

the standard.74 Additionally, SDOs exist 

to fill a business needs that are separate 

from government regulation and these 

needs continue to exist even if read-only 

access is given to standards. In cases 

where the standard wasn’t developed to 

become part of regulations, agencies 

should seek a license, although the 

commenter admitted that the licensing 

fees could be cost- prohibitive for small 

agencies. 

While technological (and publication) 

costs continue to decrease, these 


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75OFR–2013–0001–0029 and OFR–2013–0001– 

0036. 

76 78 FR 60791 (October 2, 2013). 

77OFR–2013–0001–0029. 

78 Veeck v. Southern Building Code Congress 

International, Inc., 293 F.3d 791 (5th Cir. 2002). 

79OFR–2013–0001–0012. 

80 15 U.S.C. 3701 et seq. 

81OFR–2013–0001–0004. 

82One commenter stated that OFR needs to show 

that the 5th Circuit didn’t consider specific 

arguments, and, that if we don’t, we can’t reject the 

decision of the court. See OFR–2013–0001–0021. 

We disagree. 

commenters addressed only the cost of 

making something available online and 

did not address costs associated with 

creating the standard or providing free 

access to it. OFR staff do not have the 

experience to determine how costs 

factor into development of, or access to, 

a standard for a particular regulated 

entity or industry. Thus, this rule 

doesn’t specifically address the costs 

associated with an IBR’d standard, 

which allows the agencies flexibility to 

address cost concerns when exercising 

their authority to issue regulations. 

As we stated in our proposed rule, 

OFR is a procedural agency. We do not 

have the subject matter expertise 

(technical or legal) to tell another 

agency how they can best reach a 

rulemaking decision. Further, we do not 

have that authority. Neither the FRA, 

the FOIA, nor the APA authorizes us to 

review proposed and final rulemaking 

actions for substance. We agree that 

agencies should consider many factors 

when engaging in rulemaking, including 

assessing the cost of developing and 

accessing the standard. Thus, we are 

requiring agencies to explain why 

material is reasonably available and 

how to get it, and to summarize the 

pertinent parts of the standard in the 

preamble of both proposed and final 

rules. 

Other Issues 

a. Constitutional Issues 

b. Copyright Issues 

c. Outdated standards IBR’d into the CFR 

d. Incorporation of guidance documents and 

the use of safe harbors 

e. Indirect IBR’d standards 

f. Data and studies used to create standards 

g. Section-by-section analysis of the 

regulatory text 

a. Constitutional Issues 

A couple of commenters suggested 

that our proposal was Constitutionally 

suspect, claiming that it violates Due 

Process, Equal Protection, and First 

Amendment rights.75 They claimed that 

the public’s inability to access standards 

for free online creates due process 

concerns, because due process requires 

notice of obligations before the 

imposition of sanctions. Having to pay 

fees for standards creates obstacles and 

impacts notice, which in turn creates 

due process problems. They claimed 

there might be a First Amendment issue 

because the public can’t discuss or 

criticize regulations if they don’t know 

what they are. Finally they argued that 

equal protection and due process are 

jeopardized when some people can 

purchase the law and others can’t. One 

commenter stated that access to the 

standards in Washington, DC is not 

sufficient when the rule applies 

nationwide, because people have to 

travel to DC to view the standard and 

traveling costs money. Therefore, they 

argued, OFR needed to take those travel 

costs into account when approving 

agency requests to incorporate 

documents by reference into the CFR. 

Constitutional issues were raised in 

earlier documents as well. Commenters 

to the request for comments on the 

petition argued that the government 

could simply exercise the Takings 

Clause of the 5th Amendment.76

While we don’t speak for the Federal 

Government as a whole, we see no 

reason why the government would 

exercise the Takings Clause. However, 

we note that this rule continues to 

require that agencies provide us a copy 

of all documents they wish to IBR into 

the CFR. Agencies must also maintain at 

least one copy of all IBR’d standards for 

public inspection at their agency. They 

must also provide their contact 

information along with contact 

information for the OFR and the 

standards’ publishers in the regulatory 

text. Anyone can contact any of these 3 

groups with questions regarding access 

to the documents IBR’d by an agency 

into the CFR, so access is not restricted 

to the Office of the Federal Register in 

Washington, DC. 

Further, nothing in this rule prevents 

the public from discussing or criticizing 

any Federal regulations. By requiring 

agencies to add to the preamble a 

discussion of how to examine or obtain 

copies of standards referenced in their 

rulemaking documents, along with 

summaries of those standards, we are 

ensuring that members of the public 

have more information for determining 

if the summary is sufficient or if they 

need (or just want) to contact the 

agencies with questions on how to 

access the IBR’d standards. 

b. Copyright Issues 

Several commenters claimed that 

once a standard is IBR’d into a 

regulation it becomes law and loses its 

copyright protection and, therefore, that 

IBR’d standards must be available for 

free online without any further 

discussion. Other commenters 77 stated 

that the public is the owner and author 

of the regulations and thus has the right 

to know the law, relying on the Veeck 

case.78 At least one commenter stated 

that the law is in the public domain and 

therefore not ‘‘amenable to 

copyright.’’ 79

Several commenters appeared to 

argue that the Veeck case demonstrates 

that SDOs have survived and grown 

over the years despite not having 

copyright protection awarded by a court 

because SDOs still create and charge for 

standards even after the Veeck decision; 

that the complexity of the modern age 

requires that agencies standardize across 

the Federal government, thus 

compelling the use of standards; and 

that SDOs can annotate their standards 

and charge fees for those annotations. 

These commenters’ conclusion seemed 

to be that SDOs will continue to create 

standards and push for their 

incorporation into Federal regulations. 

Therefore, OFR must require that only 

standards available for free online are 

eligible for IBR approval. 

One commenter referenced the 

NTTAA 80 and stated that since this 

statute says agencies shouldn’t use 

standards in a way inconsistent with 

applicable law, therefore if agencies 

can’t use the standard without violating 

copyright law, then the agency 

shouldn’t IBR that standard.81

As we stated in our NPRM, recent 

developments in Federal law, including 

the Veeck decision 82 and the 

amendments to FOIA, and the NTTAA 

have not eliminated the availability of 

copyright protection for privately 

developed codes and standards that are 

referenced in or incorporated into 

federal regulations. Therefore, we 

cannot issue regulations that could be 

interpreted as removing copyright 

protection from IBR’d standards. We 

recommend that the responsible 

government agency collaborate with the 

SDOs and other publishers of IBR’d 

materials to ensure that the public does 

have reasonable access to the referenced 

documents. Therefore, in this final rule 

we require that agencies discuss how 

the IBR’d standards are reasonably 

available to commenters and to 

regulated entities. One way to make 

standards reasonably available, if they 

aren’t already, is to work with copyright 

holders. 

One commenter stated that since it is 

the text of standards that must be 

available (citing Veeck for the 

proposition that the law is not subject 

to copyright law), agencies should copy 

the text of IBR’d standards and place the 


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66274 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

83OFR–2013–001–0024 footnote 23 at page 8. 

84 44 U.S.C. 1510 and 1 CFR part 21. 

85OFR–2013–001–0024. 

86 44 FR 18630, as corrected at 44 FR 19181. 

87 47 FR 34108. 

88OFR–2013–001–0024. 

89OFR–2013–001–0030. 

90OFR–2013–001–0024 at page 2. 

91 Id. at page 2, OFR–2013–001–0004. 

92 Id. at page 3. 

93 Id. at page 8. 

94ACUS Recommendation 76–2 (41 FR 29653, 

July 19, 1976) recommends that agencies publish 

their statements of general policy and 

interpretations of general applicability in the 

Federal Register citing 5 U.S.C. 522(a)(1)(D). This 

recommendation further recommends that when 

these documents are of continuing interest to the 

public they should be ‘‘preserved’’ in the CFR. 41 

FR 29654. The recommendation also suggests that 

agencies preserve their statements of basis and 

purpose related to a rule by having them published 

in the CFR at least once in the CFR edition for the 

year rule is originally codified. Many agencies have 

text online. In a footnote, the 

commenter suggested that OFR require 

agencies to place the text of their 

‘‘regulatory obligations’’ in their online 

dockets. This way the ‘‘text of the legal 

obligation and not the standard as such’’ 

is available online for free.83

We leave it to the agencies to 

determine if they should follow this 

commenter’s suggestion. We do note 

that agencies requesting IBR approval 

must follow the requirements set out in 

part 51, including § 51.9, requiring very 

specific information about the standard, 

so that the standard and ‘‘regulatory 

obligations’’ can be clearly identified. 

c. Outdated Standards IBR’d Into the 

CFR 

A few commenters again mentioned 

that some of the standards IBR’d into 

the CFR were outdated or expressed 

concern that agencies were failing to 

update the IBR references in the CFR. 

The orderly codification requirements of 

the FRA and the ACFR prohibit us from 

amending another agency’s 

regulations,84 so we cannot take 

unilateral action. Further, we don’t have 

the authority to decide that a newer 

version of a particular standard serves 

the same purpose as an older version; 

that determination is solely for the 

agency. However, we continue to 

provide support and assistance to 

agencies that are implementing or 

updating regulations with IBR’d 

material. We contact agencies and let 

them know if we hear from someone 

that a standard is difficult to find. We 

also refer callers to our agency contacts. 

One commenter stated that two-thirds 

of IBR’d standards were published in 

1995 or earlier, thus, these standards are 

no longer available except at the 

National Archives and Records 

Administration.85 The commenter 

suggested that to address this issue OFR 

needs to include a sunset provision in 

part 51 to limit the duration of an IBR 

approval or to require that agencies 

certify for each annual edition of the 

CFR that standards IBR’d are still 

available. From 1979 through 1982, we 

approved material IBR’d on a yearly 

basis, as part of a comprehensive review 

of all material IBR’d and a review of the 

overall approval process.86 We initially 

established the annual review for only 

3 years, but it soon became clear that a 

one-year review was neither practical 

nor efficient. We chose not extend the 

program at the end of 3 years but to 

return instead to the original process.87

As we stated above, the orderly 

codification requirements of the FRA 

and the ACFR prohibit us from 

amending another agency’s 

regulations 88 so it is not clear how the 

expiration of an IBR approval would be 

identified in the CFR without 

undermining orderly codification and 

without returning to an approval system 

that has already failed. 

d. Incorporation of Guidance 

Documents and the Use of Safe Harbors 

While some of the commenters 

approved of our proposal and its 

rejection of the notion that IBR 

standards should be removed from 

regulations and incorporated into 

agency guidance,89 one commenter 

modified the argument and suggested 

that OFR needs to adopt the formal 

stance that ‘‘incorporated standards do 

not create legal obligations, as such, 

rather identify appropriate means for 

achieving compliance with regulatory 

requirements that are independently 

and fully stated in public law.’’ 90 This 

commenter suggested that adopting this 

proposition would bring our 

requirements in line with the European 

Union’s stance on incorporation by 

reference. The commenter then went on 

to describe the way the EU countries 

develop standards and recommended 

that the U.S. adopt that model of 

standards development. However, the 

OFR has no statutory authority to 

completely change the way standards 

are developed in the U.S. We continue 

to maintain that the explicit statutory 

language of section 552(a) applies when 

agencies request to IBR materials into 

the CFR. Therefore, we have no 

authority to approve IBRs of standards 

into agency guidance documents. 

The commenter continued by stating 

that OFR cannot, in its regulations, 

allow materials that are copyrighted to 

become binding legal requirements 

through IBR. They also stated that OFR 

needs to accept the IBR of guidance 

documents that are not legally binding 

and limit the IBR’ing of required 

standards to ones that are available for 

free online.91

This commenter went on to state that 

section 552(a)(1) clearly allows for the 

IBR of guidance documents, stating that 

‘‘part 51’s refusal to consider these IBRs 

is unprincipled and unjustified.’’ 92 This 

commenter then listed the merits of 

IBR’ing of guidance documents, for 

example, no copyright issues and ease 

for agencies to update the reference 

when the standards are updated. 

Agencies are not required to request 

IBR approval for guidance documents 

referenced in their regulations. 

Currently, if materials that are 

published elsewhere are referenced as 

guidance documents in regulatory text 

or a CFR appendix, agencies are not 

required to submit an IBR request; they 

must simply add information on how to 

obtain the guidance material in the 

regulatory text. This requirement is less 

stringent than IBR approval and we see 

no reason to change our policy at this 

time. While this commenter is correct 

that in the past we have approved IBR 

in limited instances for guidance 

documents, there has never been a 

requirement in our regulations that 

guidance documents must obtain IBR 

approval; that is because not all agency 

guidance documents or the materials 

referenced in those documents are 

published or referenced in the Federal 

Register. Regardless, any requests for 

IBR must still meet the requirements of 

part 51 and any changes to the CFR or 

a CFR appendix must publish in the 

Rules and Regulations section of the 

Federal Register. That publication 

requirement will increase the time it 

takes to update IBR’d guidance 

documents and may not provide the 

flexibility to update guidance the 

commenter hoped for. 

This commenter also suggested that 

we don’t understand the law and that 

we believe that guidance documents 

aren’t regulatory.93 However, we do 

understand the concept that guidance 

documents are not requirements and if 

agencies try to enforce them as binding, 

private entities can sue the agency. 

Both the FRA and the APA require 

that documents of general applicability 

and legal effect be published in the 

Federal Register and codified in the 

CFR. In general, agencies are not 

required to codify their guidance 

documents, policy letters, or directives 

in the CFR and thus, they might not be 

published in the Federal Register.94 Nor 


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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 66275 

not followed this recommendation, most likely 

because some of the material is published in the 

United States Government Manual or they find the 

cost prohibitive. 95OFR–2013–0001–0029. 

96OFR–2013–0001–0024 and OFR–2013–0001– 

0029. 

97Public Law 107–347 (2002). 

98OFR–2013–0001–0029. 

are they required to formally request 

approval for standards referenced in the 

CFR that are not binding requirements. 

OFR has long interpreted section 

552(a)’s use of the term ‘‘affected’’ to be 

related to binding requirements that 

have an effect on parties. Thus, we 

haven’t required that references in the 

CFR to standards for guidance purposes 

go through IBR approval. We do not 

have the staff or other resources needed 

to approve IBR requests for documents 

that are guidance rather than documents 

that are requirements. As we mentioned 

above, agencies can already reference 

those documents in the CFR without 

going through the formal IBR review 

process. Thus, is not clear why agencies 

would need IBR approval for these nonregulatory documents. 

One commenter stated that there is no 

distinction between a regulatory 

standard and a safe harbor.95 This 

commenter stated that a safe harbor in 

regulatory text will bind the agency to 

accept actions that are within the safe 

harbor as compliance. Thus, the safe 

harbor will dominate as the compliance 

method. Therefore, this commenter 

believed that all requirements suggested 

for IBR’d standards (most importantly 

that they must be available for free 

online) also apply to safe harbors. We 

agree that this is a concern, however we 

don’t see that this specific issue is 

covered by part 51. 

e. Indirect IBR’d Standards 

At least 4 commenters raised the issue 

that some of the IBR’d standards also 

reference other standards in their text. A 

couple of these comments suggested 

that the OFR deny IBR approval unless 

all standards are available for free 

online, including those referenced 

within the standard the agency is 

seeking IBR approval for. At least, one 

of the commenters stated that obtaining 

IBR’d material can cost several 

thousands of dollars a year. 

As we stated in our proposed rule, our 

regulations have never contained any 

provision to allow for IBR of anything 

but the primary standards and, as a 

practical matter, we have no mechanism 

for approving anything but those 

primary standards. The OFR is a 

procedural agency and we do not have 

subject matter or policy jurisdiction 

over any agency or SDO. We must 

assume that agencies have fully 

considered the impact of any document 

(including material IBR’d) that they 

publish in the Federal Register. In many 

instances, agencies reference third-party 

standards in their NPRMs, so both the 

general public and the regulated public 

can review and comment on those 

standards before they are formally IBR’d 

in the CFR. We do not review material 

submitted for IBR to determine if that 

material also has other materials 

included; we look only at the criteria set 

out in our regulations. Determining that 

an agency intends to require some type 

of compliance with documents 

referenced in third-party standards is 

outside our jurisdiction; similarly, we 

cannot determine whether or not the 

subject matter of a third-party standard 

is appropriate for any given agency. 

What these commenters suggested 

would require that OFR substantively 

review each standard IBR’d to 

determine if it references other 

standards and then determine if those 

standards are required to comply with 

the IBR’d standard and the agency’s 

regulations. That is beyond the 

authority and subject matter expertise of 

this office and would increase the 

review time required to process IBR 

approval requests. Therefore, we 

continue our practice of reviewing 

approval requests only for standards 

directly IBR’d into the CFR. 

f. Data and Studies Used To Create 

Standards 

At least 2 commenters suggested that 

a condition of IBR approval must be that 

data and studies relied on to create the 

standard must be available for free 

online during the comment period of 

the NPRM, citing Portland Cement 

Ass’n v. Ruckelshaus 486 F.2d 375 (DC 

Cir 1973). They also stated that agencies 

should be required in their NPRM 

preambles to ‘‘include specification of 

the means by which would-be 

commenters can gain access to the 

studies and data on which the standard 

proposed to be incorporated is based’’ 

without incurring a significant fee.96

They claimed that without this 

requirement interested persons cannot 

meaningfully comment on an agency’s 

NPRM. 

The APA, other statutory authorities, 

and case law have continually stood for 

the proposition that the publishing 

agencies, not the OFR, are responsible 

for ensuring that the public has 

appropriate information to provide 

comments on their proposed rules. The 

task of ensuring agencies provide access 

to data and to the studies that were used 

to develop materials incorporated by 

reference is beyond our statutory 

authority and resources. Therefore, we 

decline to revise the regulations to 

require that the materials used to 

develop standards be available for free 

online. 

g. Section-by-Section Analysis of the 

Regulatory Text 

Several commenters had comments 

on specific sections set out in our 

NPRM. We address those comments by 

section below. 

Section 51.1(b) 

Some commenters suggested that we 

add the E–FOIA and the E-Government 

Act 97 to our list of authorities in 

§ 51.1(b), claiming that our refusal to do 

so ‘‘reveal[s] OFR’s regrettable 

indifference to the realities of the 

Information Age.’’ 98 It is not clear 

where these commenters would have us 

reference these statutes. Our statutory 

authority appropriately references 

section 552(a), which grants the Director 

the authority to approve agency requests 

for IBR into the CFR. If the commenters 

were focusing on the text of § 51.1(b), 

what they fail to take into account is 

that this section specifically lists 

authorities that directly relate to the 

requirement that certain documents be 

published in the Federal Register. 

Paragraph (b)(4) allows for us to review 

based on Acts other than the FRA that 

require publication in the Federal 

Register. Since this paragraph (b)(4) can 

be read broadly to include many 

different statutes, we do not believe we 

need to specifically reference these 

statutes. 

Section 51.1(e) 

One commenter stated that paragraph 

(e) of § 51.1 was confusing because it 

states that use of the phrase 

‘‘incorporation by reference’’ by itself 

does not mean the Director has 

approved an agency request for 

incorporation by reference. The 

commenter suggested that this 

paragraph be removed. 

The CFR uses the phrase 

‘‘incorporation by reference’’ throughout 

its titles even when this phrase does not 

mean incorporation by reference 

pursuant to section 552(a). For example, 

the Federal Acquisition regulations in 

Title 48 of the CFR and 40 CFR 1502.21 

(which discusses incorporating 

materials by reference into agency 

environmental impact statements) both 

use the phrase ‘‘incorporation by 

reference’’ in ways unrelated to the use 

of the ‘‘incorporation by reference’’ 

described, in section 552(a). Paragraph 

(e) clarifies that if the Director’s 


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99See, OFR–2013–0001–00024 and OFR–2013– 

0001–00032. One commenter alleges that it is a 

‘‘mere phantasm if the agency can meet the 

requirement by stating that a copy of the 

publication has been placed at the bottom of a 

locked filing cabinet . . .’’, see OFR–2013–0001– 

0037. We can’t assume, as this commenter appears 

to do, that agencies will willfully obstruct access to 

the standards they’ve IBR’d. 100OFR–2013–0001–0022. 

101OFR–2013–0001–0026. 

102OFR–2013–0001–0021. 

approval language is not linked to the 

IBR reference in the CFR, that use of the 

term IBR has not been approved by the 

Director and may be unrelated to section 

552(a) and the regulations found in part 

51. Therefore, because this phrase is 

used in multiple ways in the CFR, we 

decline to remove paragraph (e) from 

§ 51.1. 

Section 51.5 

One commenter, when discussing 

§§ 51.3 and 51.5, stated that our 

proposal would reduce ‘‘reasonably 

available’’ to formality that doesn’t 

encourage agencies to comply with 

section 552(a) or with 5 U.S.C. 553. 

They argued that OFR is not paying 

enough attention to the public’s ability 

to comment on NPRMs (other 

commenters also suggested that the OFR 

should require rulemaking documents 

be understandable without the need for 

the reader to rely on the IBR’d 

material 99). The commenter believed 

that a discussion of how the agency 

made the material reasonably available 

doesn’t go far enough. This commenter 

recommended that we change the text to 

require that agencies explain what they 

propose to require in their rulemaking. 

Along this same line, another 

commenter wanted a detailed abstract of 

the IBR’d materials. 

It is the responsibility of the agency 

issuing the regulations to ensure that it 

complies with the requirements of the 

APA. Our intent with these changes is 

to provide the public more information 

regarding standards IBR’d, both how to 

access these standards and to get a 

summary of what the standard is about. 

The OFR can’t ensure that every agency 

complies with the requirements of the 

APA; we are not subject matter experts 

in all areas of federal law so we can’t 

make a determination on whether an 

agency’s preamble provides enough 

information for the public to 

thoughtfully comment on agencies’ 

proposals. This commenter’s suggested 

language would require OFR to do a 

substantive review of all preambles in 

rulemakings where the agencies propose 

to IBR materials into their regulations. 

This is beyond our authority; we can’t 

do it for documents without IBR and 

nothing in section 552(a) gives us 

special authority to perform substantive 

reviews of rulemaking documents with 

IBR. 

One commenter expressed concerns 

that the requirement to summarize 

standards in preambles is not specific 

enough. This commenter wanted more 

specificity on what constitutes 

reasonable availability. The commenter 

said that requiring too much detail is a 

problem, because the summary doesn’t 

replace the actual text of the standard 

and agencies shouldn’t be placed in a 

position to argue or litigate whether 

there was enough detail in the 

summary. The summary should alert 

readers to go to the standard. We agree 

that this summary of the standard needs 

to give readers enough information to 

decide if they need to read the standard 

for more detail or not, thus we kept the 

regulatory text flexible to allow agencies 

to write these summaries in ways that 

best meet the needs of their readers. 

Another commenter, while agreeing 

that ‘‘reasonably available’’ might not 

mean free online, stated that it does 

mean more than the agency simply 

having a copy available for examination 

in its Washington, DC headquarters.100

This commenter stated that the OFR 

needs to define reasonably available and 

let the public comment on that 

proposed definition. It also stated that 

OFR needs to provide agencies with 

guidance on how we expect them to 

comply with this requirements. This 

commenter further urged that OFR 

define ‘‘reasonably available’’ 

differently, depending on where in the 

rulemaking process the regulation is. 

Thus, this commenter recommended 

that ‘‘reasonably available’’ be defined 

at the proposed rule stage to mean the 

material proposed to be IBR’d be 

available to review for free online. At 

the final rule stage, and while the rule 

is effective ‘‘reasonably available’’ 

would mean that IBR’d material could 

be purchased from the publisher. 

We decline to define ‘‘reasonably 

available.’’ Much like the request to 

define ‘‘class of persons affected,’’ we 

are concerned that any definition will 

fail because it is either too broad to be 

meaningful or too restrictive, impeding 

agencies’ ability to work with SDOs and 

other publishers to make the material 

available to wide audience either during 

the comment period of a proposed rule 

or while a regulation is in effect. The 

absence of a too-broad or too-narrow 

definition allows agencies to maintain 

flexibility in making IBR’d materials 

‘‘reasonably available’’ during the lifecycle of a regulation and their regulatory 

programs on a case-by-case basis to 

respond to specific situations. 

Another commenter stated that the 

proposed regulatory text in § 51.5 was 

too focused on the reasonable 

availability issue. This commenter 

claimed that the NPRM suggests that 

there are ‘‘varying degrees’’ of 

reasonable availability when in reality 

material is either reasonably available or 

it is not.101 The commenter objected to 

the proposed language in § 51.5 because, 

the commenter claimed, that by 

requiring agencies to discuss how they 

worked with publishers to make 

material reasonably available, we are 

suggesting a link between reasonably 

available and free online. This 

commenter recommended changing the 

focus of the text from the reasonably 

available requirement to instead require 

that agencies discuss all the factors they 

considered, including availability, when 

proposing to IBR a standard. The 

commenter believed that this language 

better articulates federal policy. 

Section 552(a) specifically mentions 

reasonable availability without 

addressing other factors agencies used 

to determine if they wished to request 

IBR approval for particular standards. 

Therefore, this section properly focuses 

on a discussion of how the materials are 

available. Nothing in this rule prohibits 

agencies from discussing, in their 

preambles, what factors they considered 

when determining if and what materials 

they would request approval for. Thus, 

we decline to revise this section to make 

this commenter’s suggested changes. 

One commenter stated that using the 

term ‘‘or’’ instead of ‘‘and’’ in the 

proposed rule text violates the statute 

because the material must be made 

reasonably available under the 

statute.102 The commenter continued, 

stating that it’s the Director who 

determines reasonable availability and 

not the agencies. Therefore, the 

proposed language puts the reasonable 

availability determination on the wrong 

party. The commenter assumes agencies 

will develop different criteria for 

determining whether something is 

reasonably available. The NPRM stated 

that agencies might not be able to IBR 

SDO standards if we require that they be 

available for free; the commenter 

disagreed with this statement. 

We disagree with the commenter’s 

assessment of this proposal. The OFR 

(including the Director) does not have 

the subject matter expertise or the 

familiarity with the affected parties to 

make a case-by-case analysis of 

‘‘reasonable availability.’’ We must rely 

on the analysis of the agency. The 

revisions to this section now require 


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103OFR–2013–001–0030. 

104 77 FR 2257 (January 17, 2012). 

105OFR–2013–0001–0024 and OFR–2013–001– 

0029. 106OFR–2013–0001–0029. 

107One commenter suggests that OFR needs to do 

a complete regulatory flexibility analysis on the 

issues surrounding IBR within the federal 

government, see OFR–2013–0001–0024 footnote 10 

at page 4. Because the only new action in this rule 

is to require that agencies provide more information 

in their preambles regarding IBR’ing of standards 

we do not believe that it has a monetary impact on 

small businesses or increases their burden. 

Therefore, we decline to follow the commenter’s 

suggestion. 

that agencies provide at least part of that 

analysis instead of simply asserting that 

the material is ‘‘reasonably available.’’ 

Nothing in the proposal removes the 

requirement that IBR’d materials be 

maintained at the agency and at the 

OFR. And, the summary provides 

information to people so they can 

determine if they want to review the IBR 

material at the agency or the OFR or 

elsewhere. 

One commenter supported our 

revisions to § 51.5 because these 

requirements will bring attention to the 

availability issue and suggested that 

agencies will ‘‘proactively seek to 

improve the availability of IBR materials 

throughout the rulemaking process.’’ 103

This commenter recommended that 

OFR strengthen this provision by 

removing the ‘‘or’’ and replacing it with 

an ‘‘and.’’ This would require agencies 

to discuss both the substance of the 

standard and how they worked to make 

the standard reasonably available. This 

recommendation is also consistent with 

ACUS’ recommendation 2011–5.104

We agree that this provision should be 

strengthened so we replaced the ‘‘or’’ 

with an ‘‘and.’’ And, we have removed 

the requirement that the agency discuss, 

in the final rule, how the incorporated 

material was reasonably available at the 

proposed rule stage. We require, at both 

the proposed and final rule stages, that 

agencies include language in their 

rulemaking preambles that both discuss 

the availability of the standards and 

provide a summary of the standards 

themselves. 

Section 51.7 

At least 2 commenters suggested that 

we remove the requirement that 

standards be technical in nature to 

receive IBR approval in an attempt to 

limit the number of printed Federal 

Register and CFR pages.105 One 

commenter also expressed a concern 

that by removing the requirement that 

IBR’d standards must be technical in 

nature, OFR is allowing agencies to 

remove essential requirements from the 

regulatory text so that the legal 

obligation is hidden within the IBR’d 

standard merely to save printed pages in 

the Federal Register. This commenter 

argued that agency regulations need to 

be sufficiently and adequately set out to 

allow the reader to know and be able to 

meet the regulatory obligations. This 

commenter claimed that OFR needs to 

add a provision to part 51 requiring that 

the IBR material be technical in nature 

and that it supplement the regulatory 

text, not be a substitute for it. The 

commenter also stated that OFR must 

review both the regulatory text and the 

standards to ensure the IBR material 

doesn’t replace the requirements set out 

in regulatory text. 

This commenter was, in effect, 

suggesting that OFR conduct a 

substantive review of both the 

regulatory text and the standards. A 

review of this nature would require a 

substantive review of agency 

regulations, something that is beyond 

our authority, so, while we clarified 

§ 51.7(a)(2) to require that standards 

IBR’d be technical standards, we decline 

to make these suggested changes that 

would require us to review the materials 

to ensure that they didn’t include 

regulatory obligations not set out in the 

regulatory text. 

Another concern raised by some of 

the commenters was that completely 

removing the requirement that IBR 

standards be technical in nature ‘‘will 

spur further inappropriate 

incorporations by reference.’’ 106

At least one other commenter 

specifically referenced § 51.7(a) and 

expressed concern that the proposal 

removed the requirement that IBR’d 

standards be technical in nature. The 

commenter stated that this requirement 

reduces the risk that agencies will IBR 

standards that are regulatory in nature. 

This commenter suggested that the 

requirement was the public-private 

equivalent of our prohibition on 

agencies IBR’ing their own publications. 

We understand these concerns 

regarding the proposed language, so we 

modified the language in § 51.7(a)(2) to 

retain the original language of this 

paragraph, while modifying the 

structure to emphasize that standards 

cannot detract from the Federal Register 

publication system. So, much like our 

provision addressing agency-produced 

documents, these changes allow us the 

flexibility to work with agencies on the 

types of materials IBR’d. 

There were a couple of commenters 

who specifically referenced proposed 

revisions to § 51.7, explaining what 

types of documents are eligible for IBR 

approval. One commenter objected to 

the language in § 51.7(a)(3) claiming that 

OFR does not need to include 

requirements for usability in the 

regulations because the requirements 

seem print-focused and are irrelevant in 

the age of the Internet. 

Despite the commenter’s attempt to 

show that the OFR is out-of-touch with 

the information age, we still receive 

hard copies of the materials agencies 

IBR into the CFR. Thus, we decline to 

remove this paragraph entirely. We have 

modified the language slightly with the 

phrase ‘‘as applicable’’ to indicate to 

agencies that submit hard copies of their 

IBR’d material this requirement still 

applies. Further, the numbering and 

ordering requirement may still apply to 

electronic material. We are not unduly 

focused on print publications, but until 

no standards are available in print, we 

have to consider both print and 

electronic publications. 

Finally, we restructured paragraph (a) 

into a more logical order. 

Regulatory Analysis 

We developed this rule after 

considering numerous statutes and 

Executive Orders related to rulemaking. 

Below is a summary of our 

determinations with respect to this 

rulemaking proceeding. 

Executive Orders 12866 and 13563 

The rule was drafted in accordance 

with Executive Order 12866, section 

1(b), ‘‘Principles of Regulation’’ and 

Executive Order 13563 ‘‘Improving 

Regulation and Regulatory Review.’’ We 

sent the rule to OMB under section 

6(a)(3)(E) of Executive Order 12866 and 

it was determined to be a significant 

regulatory action as defined under 

section 3(f) of Executive Order 12866. 

Regulatory Flexibility Act 

This rule will not have a significant 

impact on small entities since it 

imposes requirements only on Federal 

agencies.107 Members of the public can 

access Federal Register publications for 

free through the Government Printing 

Office’s Web site. Accordingly, the head 

of the agency certifies that the rule will 

not, if promulgated, have a significant 

economic impact on a substantial 

number of small entities. 

Federalism 

This rule has no Federalism 

implications under Executive Order 

13132. It does not impose compliance 

costs on state or local governments or 

preempt state law. 

Congressional Review 

This rule is not a major rule as 

defined by 5 U.S.C. 804(2). We will 


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66278 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Rules and Regulations 

submit a rule report, including a copy 

of this rule, to each House of the 

Congress and to the Comptroller General 

of the United States as required under 

the congressional review provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1986. 

List of Subjects in 1 CFR Part 51 

Administrative practice and 

procedure, Code of Federal Regulations, 

Federal Register, Incorporation by 

reference. 

For the reasons discussed in the 

preamble, under the authority at 5 

U.S.C. 552(a), the Director of the Federal 

Register amends chapter II of title 1 of 

the Code of Federal Regulations as set 

forth below: 

PART 51—INCORPORATION BY 

REFERENCE 

■ 1. The authority citation for part 51 

continues to read as follows: 

Authority: 5 U.S.C. 552(a). 

■ 2. Revise 51.3 to read as follows: 

§ 51.3 When will the Director approve a 

publication? 

(a)(1) The Director will informally 

approve the proposed incorporation by 

reference of a publication when the 

preamble of a proposed rule meets the 

requirements of this part (See § 51.5(a)). 

(2) If the preamble of a proposed rule 

does not meet the requirements of this 

part, the Director will return the 

document to the agency (See 1 CFR 2.4). 

(b) The Director will formally approve 

the incorporation by reference of a 

publication in a final rule when the 

following requirements are met: 

(1) The publication is eligible for 

incorporation by reference (See § 51.7). 

(2) The preamble meets the 

requirements of this part (See 

§ 51.5(b)(2)). 

(3) The language of incorporation 

meets the requirements of this part (See 

§ 51.9). 

(4) The publication is on file with the 

Office of the Federal Register. 

(5) The Director has received a written 

request from the agency to approve the 

incorporation by reference of the 

publication. 

(c) The Director will notify the agency 

of the approval or disapproval of an 

incorporation by reference in a final rule 

within 20 working days after the agency 

has met all the requirements for 

requesting approvals (See § 51.5). 

■ 3. Revise 51.5 to read as follows: 

§ 51.5 How does an agency request 

approval? 

(a) For a proposed rule, the agency 

does not request formal approval but 

must: 

(1) Discuss, in the preamble of the 

proposed rule, the ways that the 

materials it proposes to incorporate by 

reference are reasonably available to 

interested parties or how it worked to 

make those materials reasonably 

available to interested parties; and 

(2) Summarize, in the preamble of the 

proposed rule, the material it proposes 

to incorporate by reference. 

(b) For a final rule, the agency must 

request formal approval. The formal 

request package must: 

(1) Send a letter that contains a 

written request for approval at least 20 

working days before the agency intends 

to submit the final rule document for 

publication; 

(2) Discuss, in the preamble of the 

final rule, the ways that the materials it 

incorporates by reference are reasonably 

available to interested parties and how 

interested parties can obtain the 

materials; 

(3) Summarize, in the preamble of the 

final rule, the material it incorporates by 

reference; 

(4) Send a copy of the final rule 

document that uses the proper language 

of incorporation with the written 

request (See § 51.9); and 

(5) Ensure that a copy of the 

incorporated material is on file at the 

Office of the Federal Register. 

(c) Agencies may consult with the 

Office of the Federal Register at any 

time with respect to the requirements of 

this part. 

■ 4. In § 51.7, revise paragraph (a) to 

read as follows: 

§ 51.7 What publications are eligible? 

(a) A publication is eligible for 

incorporation by reference under 5 

U.S.C. 552(a) if it— 

(1) Conforms to the policy stated in 

§ 51.1; 

(2)(i) Is published data, criteria, 

standards, specifications, techniques, 

illustrations, or similar material; and 

(ii) Does not detract from the 

usefulness of the Federal Register 

publication system; and 

(3) Is reasonably available to and 

usable by the class of persons affected. 

In determining whether a publication is 

usable, the Director will consider— 

(i) The completeness and ease of 

handling of the publication; and 

(ii) Whether it is bound, numbered, 

and organized, as applicable. 

* * * * * 

■ 5. In 51.9, revise paragraphs (a) and (c) 

to read as follows: 

§ 51.9 What is the proper language of 

incorporation? 

(a) The language incorporating a 

publication by reference must be 

precise, complete, and clearly state that 

the incorporation by reference is 

intended and completed by the final 

rule document in which it appears. 

* * * * * 

(c) If the Director approves a 

publication for incorporation by 

reference in a final rule, the agency 

must include— 

(1) The following language under the 

DATES caption of the preamble to the 

final rule document (See 1 CFR 18.12 

Preamble requirements): 

The incorporation by reference of 

certain publications listed in the 

regulations is approved by the Director 

of the Federal Register as of llll. 

(2) The preamble requirements set out 

in 51.5(b). 

(3) The term ‘‘incorporation by 

reference’’ in the list of index terms (See 

1 CFR 18.20 Identification of subjects in 

agency regulations). 

Dated: November 3, 2014. 

Amy P. Bunk, 

Acting Director, Office of the Federal Register. 

[FR Doc. 2014–26445 Filed 11–6–14; 8:45 am] 

BILLING CODE 1505–02–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 843 

RIN 3206–AM99 

Federal Employees’ Retirement 

System; Present Value Conversion 

Factors for Spouses of Deceased 

Separated Employees 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is adopting its 

proposed rule to revise the table of 

reduction factors for early commencing 

dates of survivor annuities for spouses 

of separated employees who die before 

the date on which they would be 

eligible for unreduced deferred 

annuities, and to revise the annuity 

factor for spouses of deceased 

employees who die in service when 

those spouses elect to receive the basic 

employee death benefit in 36 

installments under the Federal 

Employees’ Retirement System (FERS) 

Act of 1986. These rules are necessary 

to ensure that the tables conform to the 

economic and demographic 

assumptions adopted by the Board of 


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