INCORPORATION BY REFERENCE IN AN
OPEN-GOVERNMENT AGE
EMILY S. BREMER*

INTRODUCTION ............................................................133
I. BACKGROUND........................................................139
A. Context: The Public‐Private
Partnership in Standards..............................139
B. Process: The Role of the Office
of the Federal Register ..................................141
C. Regulatory Uses of Incorporation
by Reference ...................................................145
1. Types of Incorporated Materials...........145
* Attorney Advisor, Administrative Conference of the United States; J.D., New
York University School of Law, 2006; B.A., New York University, 2003. This Arti‐
cle draws extensively from a report the Author prepared as an in‐house re‐
searcher for the Administrative Conference of the United States, which adopted
Recommendation 2011‐5, Incorporation by Reference, based on the report. See Adop‐
tion of Recommendations, 77 Fed. Reg. 2257 (Jan. 17, 2012). The views expressed
here are the Author’s alone and do not necessarily represent the views of the Ad‐
ministrative Conference of the United States or its members.
As part of this project, the Author spent two days working with the legal staff at
the Office of the Federal Register (OFR), and gave a presentation at a quarterly
meeting of the Interagency Committee on Standards Policy (ICSP). Additionally,
the Author conducted in‐depth interviews with agency officials at the Coast
Guard, Consumer Product Safety Commission (CPSC), Department of Treasury,
Environmental Protection Agency (EPA), Federal Aviation Administration (FAA),
Federal Energy Regulatory Commission (FERC), National Highway Traffic Safety
Administration (NHTSA), National Institute of Standards and Technology (NIST),
Nuclear Regulatory Commission (NRC), Occupational Safety and Health Admini‐
stration (OSHA), Office of Management and Budget (OMB), and Pipeline and
Hazardous Materials Safety Administration (PHMSA). The Author also inter‐
viewed representatives from the American Society for Testing and Materials
(ASTM), American National Standards Institute (ANSI), American Society of Me‐
chanical Engineers (ASME), Society of Automotive Engineers (SAE), National Fire
Protection Association (NFPA), Organization for the Advancement of Structured
Information Standards (OASIS), World Wide Web Consortium (W3C), and Pub‐
lic.Resource.org. The Author would like to thank the many agency officials, Con‐
ference members and staff, standard developers, and other engaged citizens who
made this work possible.

132

Harvard Journal of Law & Public Policy

[Vol. 36

2. The Role of Federal Standards
Policy ........................................................147
3. The Current State of Standards
in Regulation ...........................................150
4. Emerging Issues with Incorporation
by Reference ............................................152
II. THE PUBLIC ACCESS PROBLEM .............................153
A. Threshold Questions .....................................156
1. To Whom Must Materials Be
Reasonably Available? ...........................156
2. Which Agency Should Ensure
Reasonable Availability?........................158
B. Evaluating Copyright Claims ......................159
1. Fair Use.....................................................160
a. The Purpose and Character
of the Infringing Use ........................162
b. The Nature of the Copyrighted
Work...................................................164
c. The Amount and Substantiality
of the Portion Used ..........................165
d. Market Impact...................................166
e. The Limited Usefulness
of Fair Use to Increase the
Availability of Incorporated
Materials ............................................166
2. Public Domain.........................................167
3. Merger Doctrine ......................................170
C. An Emerging Public Policy Dispute ...........172
D. Tools to Expand Availability .......................176
E. Collaborating to Ensure Reasonable
Availability.....................................................180
III. THE CHALLENGE OF UPDATING
INCORPORATIONS BY REFERENCE ........................183
A. Legal Prohibitions on Dynamic
Incorporations................................................184
B. Technical Amendments to Update
Access Information........................................186
C. Agency Practices That Can
Facilitate Updating........................................187
D. Confining Standards to Appendices
and Guidance .................................................190

No. 1]

Incorporation by Reference

133

E. Equivalency Determinations
and Enforcement Discretion ........................192
F. Direct Final Rulemaking...............................194
G. Statutory Solutions ........................................196
IV. PROCEDURAL AND DRAFTING ISSUES ..................200
A. Identifying Materials Appropriate
for Incorporation ...........................................201
B. Standardizing Language
and Formatting ..............................................203
C. Determining the Legal Effect of
Secondary References ...................................204
D. Addressing Potential Conflicts....................206
E. Securing Timely Approval from
the Office of the Federal Register ................207
F. Making the Process Work Better .................208
CONCLUSION ................................................................210
INTRODUCTION
The time has come to reevaluate incorporation by reference, a
little known but frequently used regulatory practice with pro‐
found public policy implications. To give a regulation legal effect,
an agency must publish it in the Federal Register for codification
in the Code of Federal Regulations (CFR).1 As a centralized de‐
pository of regulatory commands, the CFR provides citizens with
actual notice of legal requirements. In this context, incorporation
by reference is a term of art for the practice of codifying material
published elsewhere by simply referring to it in the text of a regu‐
lation. It is permitted only if the incorporated material is “rea‐
sonably available to the class of persons affected” and the prom‐
ulgating agency secures the “approval of the Director of the
1. 5 U.S.C. § 552(a)(1) (2006). The CFR is a special edition of the Federal Register
that “present[s] a compact and practical code . . . contain[ing] each Federal regula‐
tion of general applicability and legal effect.” 1 C.F.R. § 8.1(a); accord 44 U.S.C.
§ 1510. This requirement, that regulations be centrally published by the Govern‐
ment Printing Office, was imposed in 1935 in response to a Supreme Court case
involving an agency’s attempt to enforce regulations that “did not exist.” Panama
Ref. Co. v. Ryan, 293 U.S. 388, 412 (1935). See generally Erwin N. Griswold, Gov‐
ernment in Ignorance of the Law—A Plea for Better Publication of Executive Legislation,
48 HARV. L. REV. 198 (1934) (arguing for a centralized publication system to ad‐
dress the significant problem that agency pronouncements were often unavailable
and unknown even to the government officials charged with enforcing them).

134

Harvard Journal of Law & Public Policy

[Vol. 36

Federal Register.”2 The legal effect is that the material is treated as
if it were set out fully in the regulation.3
Originally intended to reduce the size and improve the read‐
ability of the CFR,4 incorporation by reference has taken on
greater significance as the government has embraced the use of
voluntary consensus standards in federal regulations. Volun‐
tary consensus standards are technical standards5 developed
by private sector organizations using an open process that re‐
spects due process, includes an appeals process, and results in
a consensus among participants representing a balance of in‐
terests.6 In the 1970s, federal policy began to prefer that agen‐
cies use such standards in regulations instead of creating “gov‐
ernment‐unique” standards.7 This policy, now codified in
statute8 and executive directive,9 allows agencies and the public
2. 5 U.S.C. § 552(a)(1); see also, e.g., Appalachian Power Co. v. Train, 566 F.2d
451, 455 (4th Cir. 1977) (holding that a document that the EPA intended to incor‐
porate by reference into a regulation was “not a validly issued part of the regula‐
tions, because it ha[d] not been published in the Federal Register, nor ha[d] the
procedural requisites for incorporation by reference been complied with”).
3. See 5 U.S.C. § 552(a)(1).
4. See 1 C.F.R. § 51.7(a)(3); see also S. REP. NO. 88‐1219, at 11 (1964) (“[T]here have
been few complaints about omission from the Federal Register of necessary offi‐
cial material. In fact, what complaints there have been have been more on the side
of too much publication rather than too little.”). See generally Memorandum from
Ramsay Clark, Attorney Gen., to Executive Departments and Agencies on the
Public Information Section of the Administrative Procedure Act (June 1967), avail‐
able at http://www.justice.gov/oip/67agmemo.htm (explaining the purpose and
meaning of the 1967 amendments to 5 U.S.C. § 552).
5. A technical standard “pertain[s] to ‘products and processes, such as the size,
strength, or technical performance of a product, process or material’ and as such
may be incorporated into a regulation.” OFFICE OF MGMT. & BUDGET, EXEC. OFFICE
OF THE PRESIDENT, OMB CIRCULAR NO. A‐119, FEDERAL PARTICIPATION IN THE
DEVELOPMENT AND USE OF VOLUNTARY CONSENSUS STANDARDS AND IN
CONFORMITY ASSESSMENT ACTIVITIES, 63 Fed. Reg. 8546, 8549 (Feb. 19, 1998) [here‐
inafter CIRCULAR A‐119], available at http://standards.gov/a119.cfm (citing 142
CONG. REC. S1080 (daily ed. Feb. 7, 1996) (statement of Sen. Jay Rockefeller)). In
contrast, a regulatory standard “establishes overall regulatory goals or outcomes”
and should be created by the agency and not incorporated by reference. See id.; see
also infra Part IV.A (examining the kinds of materials appropriate for incorpora‐
tion by reference).
6. See CIRCULAR A‐119, supra note 5.
7. See infra Part I.C.2. A government‐unique standard is a standard “developed
by the government for its own uses.” See CIRCULAR A‐119, supra note 5.
8. See National Technology Transfer and Advancement Act of 1995 (NTTAA),
Pub. L. No. 104‐113, § 12(d), 110 Stat. 775 (1996) (codified at scattered sections of
15 U.S.C. (2006)), available at http://standards.gov/standards_gov/nttaa.cfm.

No. 1]

Incorporation by Reference

135

to reap the significant benefits of collaborative governance
through a public‐private partnership in standards.10
In large part due to this federal standards policy, the CFR today
contains over 9,500 incorporations by reference of standards.11
Many other kinds of materials aside from standards are also in‐
corporated by reference, including government documents and
technical publications from nongovernmental sources. The Office
of the Federal Register (OFR) roughly and informally estimates
that if all incorporated materials were printed out fully, the CFR
would be six or seven times its current length.12
Despite its ubiquitous use, incorporation by reference in fed‐
eral regulations has, until now, escaped scholarly examination.13
Over the years, common issues with the practice have emerged,
and individual agencies have labored independently to find so‐
lutions. This Article shines a light on the important policy impli‐

9. See CIRCULAR A‐119, supra note 5.
10. See, e.g., Lisa Blomgren Bingham, The Next Generation of Administrative Law:
Building the Legal Infrastructure for Collaborative Governance, 2010 WIS. L. REV. 297,
334 (“Collaborative governance can take various forms, from network govern‐
ance, public‐private partnerships, and contracts, to deliberative democracy and
innovative online tools for civic engagement. However, for people to collaborate
and participate meaningfully in governance, they must have information.”); Jody
Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 638–43 (2000)
(examining the hazards and benefits of using privately developed voluntary con‐
sensus standards in federal regulations). See generally Jody Freeman, Collaborative
Governance in the Administrative State, 45 UCLA L. REV. 1 (1997) (arguing that ad‐
ministrative law fails to adequately appreciate the role of private parties in the
regulatory process).
11. See infra notes 81–84 and accompanying text. This number underestimates
the total number of regulatory incorporations, because it includes only standards.
Other kinds of materials which may be copyrighted, such as standards, are rou‐
tinely incorporated by reference. See infra Part I.C.1.
12. Transcript of the 55th Plenary Session of the Administrative Conference of
the United States at 39 (Dec. 8, 2011) (on file with the Administrative Conference).
13. Other scholars have examined the costs and benefits of incorporation by ref‐
erence in legislation, primarily at the state level. See F. Scott Boyd, Looking Glass
Law: Legislation by Reference in the States, 68 LA. L. REV. 1201 (2008); Ernest E.
Means, Statutory Cross References—The “Loose Cannon” of Statutory Construction in
Florida, 9 FLA. ST. U. L. REV. 1 (1981); Arie Poldervaart, Legislation by Reference—A
Statutory Jungle, 38 IOWA L. REV. 705 (1953); R. Perry Sentell, Jr., “Reference Stat‐
utes”—Borrow Now and Pay Later?, 10 GA. L. REV. 153 (1975); Horace Emerson
Read, Is Referential Legislation Worth While?, 25 MINN. L. REV. 261 (1941); cf.
Jeanelle R. Robson, Casenote, “Lazarus Come Forth. And He That Was Dead Came
Forth.” An Examination of the Lazarus Rule: Fisher v. City of Grand Island, 26
CREIGHTON L. REV. 221 (1992) (examining a rule of construction for statutes that
refer to other statutes that are later repealed).

136

Harvard Journal of Law & Public Policy

[Vol. 36

cations of incorporation by reference in a world transformed by
open government. It brings together the experiences of various
regulatory agencies with the goal of identifying best practices
that can improve incorporation by reference.
The greatest challenge of incorporation by reference is that it
can erect a barrier impeding access to the law, sometimes even
requiring one to pay a private party to see the full text of a final
or proposed regulation. This unfortunate consequence arises
when the incorporated material is copyrighted, as is often the
case with voluntary consensus standards. The traditional solu‐
tion has been to require OFR and promulgating agencies to keep
copies of incorporated materials available for public inspection
in agency offices, but this solution is inadequate in an age of
open government. Today, widespread use of the Internet, com‐
bined with e‐rulemaking initiatives and pushes for greater
transparency in government, have raised expectations regarding
the accessibility of agency processes and regulations.14 From this
perspective, the public access problem posed by incorporation
by reference is particularly acute during rulemaking. Because
public inspection requirements are not triggered until a rule is
final, interested parties may have to buy a copy of a standard
that an agency is considering incorporating by reference to
meaningfully comment on the proposed rule.
The problem is particularly challenging because the obvious
solutions are not workable. One solution would be to avoid
incorporation by reference and simply print the extrinsic mate‐
rial in full in the text of the Notice of Proposed Rulemaking
(NPRM) or final regulation. Another option would be to post
the incorporated material in a location that is easy to find on
the agency’s website. If the material is copyrighted, however,
these options are unavailable without the consent of the copy‐
right owner. Buying out the copyright is often prohibitively
expensive for a federal agency, particularly in these times of
budget austerity. More aggressive solutions, such as abrogating
copyright or requiring a waiver of copyright as a condition on
14. See, e.g., Transparency and Open Government: Memorandum for the Heads
of Executive Departments and Agencies, 74 Fed. Reg. 4685, 4685 (Jan. 21, 2009)
(establishing a policy that government should be transparent, participatory, and
collaborative). See generally Beth Simone Noveck, The Electronic Revolution in Rule‐
making, 53 EMORY L.J. 433 (2004) (exploring the promise of electronic tools to ad‐
dress rulemaking’s democratic deficit).

No. 1]

Incorporation by Reference

137

incorporation, are likely to undermine the highly valuable pub‐
lic‐private partnership in standards.
This Article proposes a collaborative solution to incorpora‐
tion by reference’s public access problem. Some agencies have
successfully worked with standard developers to improve ac‐
cess to standards both during rulemaking and following
promulgation. Technological tools such as read‐only capability
can provide ways to make the text of a standard broadly avail‐
able to the public while retaining the value of the copyright to
the standard developer. To date, just a few agencies have tried
this approach, largely because the public access problem has
only recently come to light. The success of these efforts, how‐
ever, suggests that a collaborative approach provides the best
chance for improving public access while retaining the benefits
of the well‐established federal standards policy.
A second challenge agencies face when incorporating by ref‐
erence is keeping regulations current as incorporated standards
are revised to reflect evolving technical knowledge. This issue
arises because dynamic incorporations are prohibited. That is,
agencies are required to identify the specific version of any ma‐
terial incorporated by reference. Incorporated materials, how‐
ever, are typically highly technical and are regularly revised to
reflect ever‐evolving technical knowledge. Updating a regula‐
tion to reflect such changes typically requires an agency to con‐
duct a notice‐and‐comment rulemaking. Particularly in light of
other pressing regulatory priorities, agencies are not always able
to expend the considerable resources required to update an in‐
corporating regulation. Thus, for example, current regulations of
the Occupational Safety and Health Administration (OSHA)
continue to reference crane standards from the 1960s.15
Outdated references can endanger the public interest and
cause a host of regulatory problems. Products available on the
market are likely to conform to the most recent standards, so if
a regulation uses an older standard, regulated parties may
simply not be able to get equipment that is technically in com‐
pliance. This might actually be a good thing because technically
noncompliant products that meet newer standards are likely to
be safer. We would surely prefer construction companies use

15. See 29 C.F.R. § 1910.179(b)(1) (2012).

138

Harvard Journal of Law & Public Policy

[Vol. 36

modern crane technology, rather than sticking with 1960s tech‐
nology just to comply with outdated OSHA regulations.
Over the years, agencies have crafted a variety of approaches
that can either mitigate the harms of outdated references or
make updating easier. Using enforcement discretion or equiva‐
lency determinations can help ensure agency enforcement ef‐
forts genuinely serve the public interest. Other techniques,
such as direct final rulemaking, can make it easier to update
incorporating regulations. In some situations, however, avail‐
able solutions are inadequate. This Article suggests a statutory
solution to fill this gap.
Finally, incorporating by reference requires promulgating
agencies to successfully navigate OFR’s approval process and
avoid common pitfalls in drafting regulations. OFR regulations
govern this process and have evolved over the last decade in
ways that improve the practice of incorporating by reference,
but have caused some confusion. Some agencies experience
fewer procedural and drafting difficulties than others. These
agencies provide a model of best practices that other agencies
should follow.
A number of issues related to incorporation by reference are
outside the scope of this Article. First, this Article does not ad‐
dress distinct issues raised by incorporations by reference in
agency procurements or acquisitions. Second, issues that arise
within the standard‐development process are outside the scope
of this Article. Agencies that incorporate voluntary industry or
consensus standards by reference into regulations may partici‐
pate in the standard‐development process. To the extent that
this participation may improve the practice of incorporation by
reference, this Article addresses the subject. Broader questions
about how agencies should participate in voluntary standard‐
development processes are unrelated to the practice of incorpo‐
ration by reference and are thus beyond the scope of this Arti‐
cle. So too are intellectual property16 and antitrust17 issues that
may arise within the voluntary standard‐development process.

16. See, e.g., Joseph Farrell, Standardization and Intellectual Property, 30
JURIMETRICS J. 35, 44–45 (1989) (explaining how IP rights can reduce the likelihood
of consensus and delay standard setting); Mark A. Lemley, Intellectual Property
Rights and Standard‐Setting Organizations, 90 CALIF. L. REV. 1889, 1901 (2002) (ex‐

No. 1]

Incorporation by Reference

139

This Article proceeds in five parts. Part I provides essential
background information, including the legal and procedural
rules governing incorporation by reference, the variety of regu‐
latory purposes served by the practice, and the special role of
voluntary consensus standards in federal regulation. Part II ex‐
plores how agencies can expand public access to incorporated
materials. There are a variety of approaches agencies have suc‐
cessfully used to achieve this goal within the constraints of fed‐
eral law and regulatory policy. Part III discusses the challenges
agencies face in updating regulations that incorporate regularly
revised materials. Some agencies have greater difficulty updat‐
ing than others, and different agencies have taken different ap‐
proaches to ensure timely updates. Part IV addresses procedural
and drafting issues agencies face when they seek to incorporate
by reference. Here, as elsewhere, my research revealed winning
strategies that agencies can and should adopt.
I.
A.

BACKGROUND

Context: The Public‐Private
Partnership in Standards

The significant value of the public‐private partnership in
standards merits careful consideration when evaluating the
public policy questions raised by the practice of incorporation
by reference. Federal policy recognizes, and agencies consis‐
tently report, that incorporating by reference conveys signifi‐
cant benefits, particularly as it relates to the use of voluntary
consensus standards in regulations. Indeed, those agency per‐
sonnel who were interviewed unanimously reported that,
without the work of private standard‐development organiza‐
tions (SDOs), agencies would not have the time, resources, or
technical expertise to fulfill their regulatory missions.

amining issues that arise when a standard‐setting organization “adopts (or fails to
adopt) a standard that is covered in whole or in part by an IP right”).
17. See, e.g., Paul R. Verkuil, Public Law Limitations on Privatization of Government
Functions, 84 N.C. L. REV. 397, 434–36 (2006) (explaining how laws governing fed‐
eral government use of privately created standards mitigate antitrust issues); Ty‐
ler R.T. Wolf, Note, Existing in a Legal Limbo: The Precarious Legal Position of Stan‐
dards‐Development Organizations, 65 WASH. & LEE L. REV. 807, 839–48 (2008)
(examining antitrust issues in standards setting).

140

Harvard Journal of Law & Public Policy

[Vol. 36

Using voluntary consensus standards in federal regulation
yields a variety of public benefits. It is more cost‐effective for
agencies than creating government‐unique standards through
the rulemaking process. Office of Management and Budget
(OMB) Circular A‐119 recognizes this reality, identifying one of
its goals as “[e]liminat[ing] the cost to the Government of devel‐
oping its own standards and decreas[ing] . . . the burden of com‐
plying with agency regulation.”18 Agencies consistently agree.
For example, the Federal Energy Regulatory Commission
(FERC) has explained that “[f]rom our experience, the [North
American Energy Standards Board] process is [a] far more effi‐
cient and cost effective method of developing technical stan‐
dards for the industries involved than the use of a notice and
comment rulemaking process involving numerous technical
conferences in Washington that all believe they have to at‐
tend.”19 The practice also allows agencies to capitalize on con‐
siderable expertise and resources available outside government.
In addition, it decreases the burden of regulation and the costs of
enforcement by conforming regulatory requirements to industry
best practices. Indeed, regulated parties are often already com‐
plying with the voluntary standards that incorporation by refer‐
ence makes mandatory. This reduces the discrepancy between
industry practice and federal regulation, thereby avoiding con‐
fusion and reducing the costs of regulation.
The public‐private partnership in standards also benefits the
public by improving the process for developing voluntary con‐
sensus standards. It “[p]rovide[s] incentives and opportunities
to establish standards that serve national needs.”20 It has also
driven standard‐development organizations to adopt more
democratic, consensus‐based procedures. As Professor Robert
W. Hamilton reported in 1978, the original expansion of federal
regulatory authority in health and safety was driven in part by
concerns that voluntary standards were created in secret and
did not adequately consider or serve the public interest.21 Stan‐
18. CIRCULAR A‐119, supra note 5.
19. Standards for Business Practices and Communication Protocols for Public
Utilities, 74 Fed. Reg. 63,288, 63,302 (Dec. 3, 2009) (to be codified at 18 C.F.R. pt. 38).
20. CIRCULAR A‐119, supra note 5.
21. See Robert W. Hamilton, The Role of Nongovernmental Standards in the Devel‐
opment of Mandatory Federal Standards Affecting Safety or Health, 56 TEX. L. REV.
1329, 1379–86 (1978).

No. 1]

Incorporation by Reference

141

dard developers responded to the threat of mandatory regula‐
tion by opening their processes and including a greater range
of interests and perspectives in standard development.22 Over
the past thirty years, the federal policy favoring agency use of
voluntary consensus standards has driven voluntary consensus
organizations to continue to expand upon these efforts.23 Of
course, agencies play an important role in reviewing the results
of the private sector process and determining whether incorpo‐
ration into regulation, either as is or with modifications, would
be in the public interest and would carry out applicable statu‐
tory obligations. Nonetheless, the beneficial effects of im‐
provements to the standard‐development process go far be‐
yond regulation because industry voluntarily conforms to
many, if not most, of the standards created through these mod‐
ern, more open processes.
The public‐private partnership in standards—which incorpo‐
ration by reference facilitates—has reaped extraordinary bene‐
fits for both government and the private sector. In addressing
the important public policy questions presented below, these
benefits must be kept in mind. Any solution must preserve and
improve—and not undermine—the valuable public‐private
partnership in standards.
B.

Process: The Role of the Office
of the Federal Register

To incorporate by reference, an agency must secure the ap‐
proval of OFR24 through a process, and according to standards,
established by OFR regulations.25 Under these regulations, ma‐
terial is available for incorporation by reference only if it fits
within the Federal Register’s incorporation by reference pol‐
icy,26 which requires that regulations conform to and not de‐
tract from applicable publication and Administrative Proce‐
dure Act (APA) requirements,27 assumes that incorporations by
reference are “intended to benefit both the Federal Government

22. See id. at 1383–86.
23. CIRCULAR A‐119, supra note 5.
24. 5 U.S.C. § 552(a)(1) (2006).
25. See 1 C.F.R. § 51 (2012).
26. Id. § 51.7(a)(1) (citing id. § 51.1).
27. Id. §§ 51.1(b), 51.1(c)(2).

142

Harvard Journal of Law & Public Policy

[Vol. 36

and the members of the class affected,”28 and demands that the
reference be limited to a particular edition of the incorporated
material.29 Incorporated material must consist of “published
data, criteria, standards, specifications, techniques, illustra‐
tions, or similar material,”30 and referring to it must
“[s]ubstantially reduce[] the volume of material published in
the Federal Register.”31 The material must also be “reasonably
available to and usable by the class of persons affected,”32 with
usability evaluated based on “[t]he completeness and ease of
handling the publication,”33 and “[w]hether it is bound, num‐
bered, and organized.”34
OFR regulations are designed to ensure that incorporation by
reference serves the public interest in an orderly codification of
legally effective agency pronouncements. By requiring that in‐
corporated materials are reasonably available to and usable by
those affected, OFR regulations serve the goals of publication.
At the same time, OFR regulations vindicate the efficiency
goals of incorporation by reference. For example, OFR regula‐
tions reduce redundancy in federal publications by prohibiting
the incorporation by reference of material already published in
the Federal Register or United States Code.35 Agencies are fur‐
ther prohibited from incorporating by reference material they
publish themselves.36 This rule prevents agencies from pulling
regulations out of the CFR, publishing them elsewhere (for ex‐
ample, in a pamphlet or on the agency’s website), and then in‐
corporating them by reference. This vindicates the fundamental
precept that agency pronouncements with general legal effect
should be uniformly codified in the CFR.

28. Id. § 51.1(c)(1).
29. Id. § 51.1(f).
30. Id. § 51.7(a)(2).
31. Id. § 51.7(a)(3).
32. Id. § 51.7(a)(4)(i); see also 5 U.S.C. § 553(a)(1) (2006).
33. 1 C.F.R. § 51.7(a)(4)(i).
34. Id. § 51.7(a)(4)(ii).
35. Id. § 51.7(c).
36. See id. § 51.7(b). An exception may be made if the material meets the re‐
quirements of § 51.7(a) and “possesses other unique or highly unusual qualities”
or “cannot be printed using the Federal Register/Code of Federal Regulations
printing system.” Id. § 51.7(a)–(b).

No. 1]

Incorporation by Reference

143

OFR enforces its incorporation by reference policies via an es‐
tablished approval procedure. The procedure requires that
agencies submit a written request for incorporation by reference
along with a draft final rule.37 OFR has twenty working days to
process each request, and an agency’s rule will not be published
until approval is secured.38 As discussed in greater detail below,
this can cause problems, particularly if agency personnel are not
sufficiently familiar with OFR requirements.39 Incredibly, the
OFR Director’s staff of only three people carry out the responsi‐
bility of approving every incorporation by reference that ap‐
pears in the CFR.40 As we shall see, this practical constraint is an
important consideration in evaluating ways to address the issues
associated with incorporation by reference.
Once material is incorporated by reference, both OFR and the
promulgating agency are required to keep a hard copy avail‐
able in a reading room for public inspection.41 This is the tradi‐
tional method for providing public access to agency docu‐
ments, including incorporated materials. It allows the public to
view materials in person at OFR or at the promulgating
agency’s office. Inspection is available during regular business
hours in OFR’s reading room at its Washington, D.C. office.42
OFR regulations provide that photocopies may be made at the
inspection desk,43 but OFR no longer provides a photocopier.44
Individual agencies typically provide similar accommodations
for public inspection.
OFR’s current incorporation by reference regulations predate
the electronic age. They have not been amended since they

37. Id. § 51.5(a).
38. Id.
39. See infra Part IV.E.
40. See Amy Bunk, Office of the Fed. Register, Remarks at the 55th Plenary Ses‐
sion of the Administrative Conference of the United States 75 (Dec. 8, 2011) (tran‐
script on file with the Administrative Conference of the United States).
41. Id. § 5.2(c) (OFR); see also id. § 51.9(b)(4) (promulgating agency).
42. Id. § 3.2(a).
43. Id. § 3.2(d).
44. Members of the public may, and occasionally do, bring portable photocopi‐
ers in with them for use at the public inspection desk. Another option is to use a
high‐resolution camera to capture images of the documents, although my inter‐
views did not suggest that anyone had used that method to get copies of materials
incorporated by reference.

144

Harvard Journal of Law & Public Policy

[Vol. 36

were originally issued in 1982.45 Since then, Congress has
pushed agencies to use new technologies to expand access to
agency documents beyond what was possible when materials
could only be made available in print. The Electronic Freedom
of Information Act Amendments of 1996,46 the Government
Paperwork Elimination Act of 1993,47 and the E‐Government
Act of 200248 all require agencies to use digital technology to
make information more available to regulated parties and the
public. Although these statutes did not render OFR’s incorpo‐
ration by reference regulations unlawful, the regulations nei‐
ther acknowledge nor affirmatively support the transition to
the e‐government age.
It bears emphasizing that “incorporation by reference,” as
defined by OFR regulations, occurs only upon a rule’s promul‐
gation. This is because OFR interprets 5 U.S.C. § 552(a), the
statute that permits incorporation by reference with OFR ap‐
proval, as applying only to materials that have general legal
effect and are thus eligible for codification in the CFR.49 This is
important for two reasons. First, OFR does not get involved in
evaluating an incorporating regulation until it is final and
ready to be promulgated. During the rulemaking process, the
promulgating agency must therefore take on the burden of
evaluating whether a material is appropriate for incorporation,
including whether it is “reasonably available.” Second, the
public inspection requirement is not triggered until a rule’s
promulgation. Agencies must therefore take responsibility for
ensuring that materials are available for interested parties to
review during the rulemaking process.
45. See Approval Procedures for Incorporation by Reference, 47 Fed. Reg. 34,107
(Aug. 6, 1982) (codified at 1 C.F.R. pt. 51).
46. Pub. L. No. 104‐231, 110 Stat. 3048.
47. Pub. L. No. 105‐277, §§ 1701–1710, 112 Stat. 2681, 2681‐749–2681‐751 (codi‐
fied at 44 U.S.C. § 3504 (2006)).
48. Pub. L. No. 107‐347, 116 Stat. 2899 (codified in scattered sections of 44 U.S.C.
(2006)).
49. Compare 5 U.S.C. § 552(a)(1) (providing that properly incorporated material
“is deemed published” for purposes of the rule that “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”), with 44 U.S.C.
§ 1510(a) (defining the CFR as a “complete codification[] of the documents of each
agency of the Government having general applicability and legal effect, issued or
promulgated by the agency by publication in the Federal Register”).

No. 1]

Incorporation by Reference
C.

145

Regulatory Uses of Incorporation by Reference

Incorporation by reference serves a variety of substantive
regulatory policies. Agencies incorporate government materi‐
als, such as state regulations or Government Printing Office
(GPO) publications. Agencies also incorporate nongovernmen‐
tal materials, ranging from design specifications to product
manuals to books to privately‐created standards. In each case,
incorporation serves an agency’s specific regulatory needs.
With respect to standards, incorporation by reference also vin‐
dicates a longstanding federal policy favoring federal agency
use of voluntary consensus standards.50
To properly evaluate incorporation by reference’s current pol‐
icy challenges, we must understand its broader role in regula‐
tory policy. While the issues raised by the practice—public ac‐
cess hurdles, updating challenges, and procedural and drafting
difficulties—are common to all agencies, the techniques used to
address those issues vary. The success of each technique de‐
pends on the nature of the incorporated material and the precise
regulatory purpose served by incorporation. In short, identify‐
ing best practices requires an understanding of what—and
why—agencies incorporate by reference.
1.

Types of Incorporated Materials

Government documents, including state regulations and GPO
publications, constitute one kind of material often incorporated
by reference into the CFR. Indeed, the incorporation by reference
by the Environmental Protection Agency (EPA) of state envi‐
ronmental regulations accounts for a significant number of the
incorporation by reference requests processed by OFR.51 The
Clean Air Act, for instance, requires state and local pollution
control agencies to adopt federally approved air pollution con‐
50. See, e.g., CIRCULAR A‐119, supra note 5, ¶ 6 (“All federal agencies must use
voluntary consensus standards in lieu of government‐unique standards in their
procurement and regulatory activities, except where inconsistent with law or oth‐
erwise impractical.”); see also NTTAA, § 12(d)(1), Pub. L. No. 104‐112, 110 Stat.
775, 783 (1996) (codified as a note to 15 U.S.C. § 272 (2006)) (“[A]ll Federal agen‐
cies and departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies”).
51. See, e.g., 40 C.F.R. § 88.104‐94(k)(2) (1995) (“The standards in this section
shall be administered and enforced in accordance with the California Regulatory
Requirements Applicable to the Clean Fuel Fleet and California Pilot Programs,
April 1, 1994, which are incorporated by reference.”).

146

Harvard Journal of Law & Public Policy

[Vol. 36

trol regulations.52 EPA approves these regulations, referred to as
“State Implementation Plans,” by incorporating them by refer‐
ence into the CFR.53 Agencies may incorporate other government
documents, including federal agency publications, to serve vari‐
ous regulatory purposes.54 For example, OSHA has incorporated
by reference the Federal Highway Administration’s Manual on
Uniform Traffic Control Devices into its regulations governing
accident prevention for construction workers.55
Nongovernmental materials are also commonly incorporated
by reference. The incorporation by the Federal Aviation Ad‐
ministration (FAA) of manufacturer service manuals into its
airworthiness directives accounts for a substantial percentage
of the incorporation by reference requests processed by OFR.56
Airworthiness directives, which FAA issues on a nearly daily
basis, are “legally enforceable rules” regarding the proper
maintenance of “aircraft, aircraft engines, propellers, and ap‐
pliances.”57 FAA regulations broadly require anyone who op‐
erates such a “product” to maintain it in a safe and airworthy
condition. This general obligation finds specific expression in
airworthiness directives,58 which FAA issues when it finds
“[a]n unsafe condition”59 that “is likely to exist or develop in
other products of the same type design.”60 The directives spec‐
ify inspections, maintenance actions, or repairs necessary to
guard against the identified unsafe condition. In most cases,
52. See 42 U.S.C. § 7410 (2006).
53. See, e.g., 40 C.F.R. §§ 52.1020, 52.1037 (2011).
54. See, e.g., 16 C.F.R. § 1207.11(a) (2012) (referencing the Department of Com‐
merce’s Statistical Abstract of the United States 1973 in the CPSC’s safety standard
for swimming pool slides); 29 C.F.R. § 1926.1000(f)(3) (2012) (incorporating safety
and health regulations for construction published by the Bureau of Mines into
OSHA regulations).
55. See 29 C.F.R. §§ 1926.200(g), 1926.202 (2011).
56. See Airworthiness Directives (ADs): Incorporation by Reference, FED. AVIATION
ADMIN., http://www.faa.gov/aircraft/air_cert/continued_operation/ad/type_incorp/
(last visited Nov. 22, 2012); Airworthiness Directives; The Boeing Company Airplanes, 77
Fed. Reg. 60, 889–91 (Oct. 5, 2012) (to be codified at 14 C.F.R. pt. 39).
57. 14 C.F.R. § 39.3 (2012).
58. See, e.g., id. § 39.7 (“Anyone who operates a product that does not meet the
requirements of an applicable airworthiness directive is in violation of this sec‐
tion.”); id. § 39.9 (“If the requirements of an airworthiness directive have not been
met, you violate § 39.7 each time you operate the aircraft or use the product.”).
59. Id. § 39.5(a).
60. Id. § 39.5(b).

No. 1]

Incorporation by Reference

147

this information is already available in the repair manual pub‐
lished by the product’s manufacturer. FAA incorporates by ref‐
erence the relevant provisions of the manual to make the repair
or inspection mandatory, while avoiding errors that might re‐
sult if the agency attempted to paraphrase the manufacturer’s
instructions. Other agencies incorporate nongovernmental ma‐
terials for radically different regulatory purposes. For example,
the Nuclear Regulatory Commission (NRC) incorporates de‐
sign specifications by reference as a means of approving “a fi‐
nal standard design for a nuclear power facility.”61
Standards, which may be governmental or nongovernmen‐
tal, are a third kind of material frequently incorporated by ref‐
erence into the CFR. Although there are many types of stan‐
dards, one is particularly important: voluntary consensus
standards. For nearly four decades, federal policy has strongly
favored the use of such standards in regulations in lieu of gov‐
ernment‐unique standards.62 Created by private standard‐
development corporations and frequently copyrighted, these
standards pose particular challenges in the incorporation by
reference context.
2.

The Role of Federal Standards Policy

The policy preference for voluntary consensus standards is
embodied in the National Technology Transfer and Advance‐
ment Act of 1995 (NTTAA) and Office of Management and
Budget (OMB) Circular A‐119.63 The NTTAA requires federal
agencies to use technical standards created by voluntary con‐
sensus standard setting organizations64 unless doing so “is in‐
consistent with applicable law or otherwise impractical.”65
61. 10 C.F.R. § 52.1(a) (2012).
62. See CIRCULAR A‐119, supra note 5, ¶ 6; see also National Technology Transfer
and Advancement Act (NTTAA) § 12, Pub. L. No. 104‐113, 110 Stat. 775, 782–83
(1996) (codified as part of 15 U.S.C. § 272 (2006)).
63. An additional component of this regime is the Trade Agreements Act of
1979, Pub. L. No. 96‐39, 93 Stat. 144 (1979) (codified at ch. 13 of 19 U.S.C. (2006)),
but it is less relevant to the issue of incorporation by reference and will not be
discussed in detail in this Article. It is more relevant, however, to an Administra‐
tive Conference Recommendation adopted on the same day as Recommendation
2011‐5. See Recommendation 2011‐6, International Regulatory Cooperation, 77 Fed.
Reg. 2257‐2261 (Jan. 17, 2012).
64. See NTTAA, supra note 62, § 12(d)(1).
65. Id. § 12(d)(3); see also William P. Boswell and James P. Cargas, North Ameri‐
can Energy Standards Board: Legal and Administrative Underpinnings of a Consensus

148

Harvard Journal of Law & Public Policy

[Vol. 36

OMB Circular A‐11966 expands upon the NTTAA’s policy. First
proposed in 197667 and partially codified by the NTTAA, Circu‐
lar A‐119 “directs agencies to use voluntary consensus stan‐
dards in lieu of government‐unique standards except where
inconsistent with law or otherwise impractical.”68 Crucial to the
definition of a “voluntary consensus standard” is the use of
procedures designed to yield “[c]onsensus, which is defined as
general agreement, but not necessarily unanimity.”69 The pro‐
cedures must “include[] a process for attempting to resolve ob‐
jections by interested parties” before the final vote on the stan‐
dard.70 Moreover, the Circular clearly articulates the goals of
the policy it establishes71 and enumerates factors agencies
should consider when evaluating a voluntary consensus stan‐
dard.72 Any agency that uses a government‐unique standard

Based Organization, 27 ENERGY L.J. 147, 162 (2006) (“Congress has expressly re‐
quired all federal agencies to use technical standards developed by voluntary
consensus standards organizations as a means to carry out policy objectives or
activities.”). The NTTAA further directs federal agencies to “consult with volun‐
tary, private sector, consensus standards bodies” and “participate with such bod‐
ies in the development of technical standards” when doing so “is in the public
interest and is compatible with agency and departmental missions, authorities,
priorities, and budget resources.” NTTAA, supra note 62, § 12(d)(2).
66. See CIRCULAR A‐119, supra note 5. In early 2012, OMB issued a request for in‐
formation on the operation of the Circular, suggesting that it might propose
changes to the circular to address, among other things, the issue of incorporation
by reference. See Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, 77 Fed. Reg.
19,357 (Mar. 30, 2012); see also Letter from the Office of the Chairman of the Ad‐
min. Conference of the United States to Hon. Cass R. Sunstein, Adm’r, Office of
Info. & Regulatory Affairs, Office of Mgmt. & Budget (Apr. 30, 2012), available at
http://www.acus.gov/wp‐content/uploads/downloads/2012/04/Final‐ACUS‐
Response‐to‐OMB‐RFI‐4‐30‐12.pdf (commenting on the request for information).
As of this writing, OMB has not yet proposed changes to Circular A‐119.
67. See Hamilton, supra note 21, at 1335 n.11 (citing Proposed OMB Circular on
Federal Interaction with Voluntary Consensus Standards‐Developing Bodies, 43
Fed. Reg. 48 (1978); 41 Fed. Reg. 536723 (1976)).
68. CIRCULAR A‐119, supra note 5, ¶¶ 1, 6(a). “Impractical” is defined as includ‐
ing “circumstances in which such use would fail to serve the agency’s programs
needs; would be infeasible; would be inadequate, ineffectual, inefficient, or incon‐
sistent with agency mission; or would impose more burdens, or would be less
useful, than the use of another standard.” Id. ¶ 6(a)(2).
69. Id. ¶ 4(a)(1)(v).
70. Id.
71. See id. ¶¶ 2, 6(e).
72. See id. ¶ 6(f).

No. 1]

Incorporation by Reference

149

instead of an existing voluntary consensus standard must re‐
port and explain its decision to OMB.73 In some cases, the
agency has no such discretion because Congress has required
the use of a particular voluntary consensus standard.74
This policy has roots in a recommendation of the Adminis‐
trative Conference of the United States. In the late 1970s, the
Conference conducted a study that culminated in Conference
Recommendation 78‐4, Federal Agency Interaction with Private
Standard‐Setting Organizations in Health and Safety Regulation.75
This recommendation provided guidance to agencies and Con‐
gress on maximizing the benefits of agency participation in
voluntary standard‐development activities.76 It urged agencies
to “consider the use of existing relevant voluntary consensus
standards in developing mandatory standards,” but to do so
using “due caution . . . on a case‐by‐case basis.”77 The recom‐
mendation enumerated factors agencies should consider when
evaluating voluntary standards for inclusion in regulations,78
provided guidance about how agencies could adapt voluntary
standards to suit regulatory needs,79 and urged agencies to
“take special care to avoid needless inconsistencies between
voluntary and mandatory standards” and “remain abreast of
technological change.”80
The use of voluntary consensus standards in regulations
yields significant benefits to both the government and the pub‐
lic at large. It is an efficient, cost‐saving approach that makes
regulations easier to develop and enforce. It also captures
many of the benefits of collaborative governance by engaging
the private sector in a more cooperative regulatory effort and
giving agencies access to the significant experience and techni‐
73. Id. ¶ 6(b); see also id. ¶ 6(k) (imposing no reporting obligation if a voluntary
consensus standard does not exist); ¶¶ 9–12 (providing further detail on the scope
and means of fulfilling reporting obligations).
74. See, e.g., 15 U.S.C. § 2056b(a) (2008) (providing that “the provisions of ASTM
International Standard F963‐07 Consumer Safety Specifications for Toy
Safety . . . shall be considered to be consumer product safety standards issued by
the [CPSC]”); 42 U.S.C. § 17021 (2012) (using ASTM standards in defining and
establishing labeling requirements for biomass‐based diesel fuels).
75. 44 Fed. Reg. 1357 (Jan. 5, 1979) [hereinafter Recommendation 78‐4].
76. See id. ¶¶ 1–5.
77. Id. ¶ 6.
78. See id. ¶¶ 6(a)–(f).
79. See id. ¶¶ 7(a)–(f).
80. Id. ¶ 8.

150

Harvard Journal of Law & Public Policy

[Vol. 36

cal expertise outside government. These policy advantages are
explored in greater detail below.
3.

The Current State of Standards in Regulation

Today, standards, including voluntary consensus standards,
account for thousands of incorporations by reference in the
CFR. As of January 6, 2012, the National Institute of Standards
and Technology (NIST) Standards Incorporated by Reference
Database included 9475 records of standards incorporated by
reference into the CFR.81 The top ten organizations with stan‐
dards incorporated by reference are as follows:
Standard‐Development
Organization
American Society for Testing and
Materials (ASTM)
American National Standards
Institute (ANSI)
American Society of Mechanical
Engineers (ASME)
U.S. Environmental Protection
Agency (EPA)
Society of Automotive Engineers
(SAE)
National Fire Protection
Association (NFPA)
American Petroleum Institute (API)
International Maritime
Organization (IMO)
AOAC International (AOAC)
National Academy Press (NAP)

Number of Incorporations by
Reference in CFR82
2230 (885)
554 (179)83
536 (60)
464 (287)
435 (156)
370 (88)
280 (63)
226 (78)
211 (211)
198 (187)

81. See NIST, Regulatory SIBR (P‐SIBR) Statistics, STANDARDS INCORPORATED BY
REFERENCE (SIBR) DATABASE, http://standards.gov/sibr/query/index.cfm?fuseaction
=rsibr.total_regulatory_sibr (last visited Nov. 22, 2012).
82. Some standards are incorporated by reference multiple times in the CFR, so
the number of incorporations is greater than the number of unique standards incor‐
porated by reference. This table provides the former, with the latter in parentheses.
83. ANSI is an umbrella organization, so a standard may be labeled, for exam‐
ple, as both an ASTM standard and an ANSI standard. This status may affect the
way incorporations are counted.

No. 1]

Incorporation by Reference

151

As this list shows, a variety of standards are incorporated by
reference into the CFR, “includ[ing] . . . voluntary consensus
standards, government unique standards, private industry
standards, and international standards.”84
Agencies incorporate standards into the CFR to serve a di‐
verse array of regulatory purposes. For example, the Coast
Guard’s marine engineering regulations “adopt a great number
of industry standards for power boilers, piping systems, and
main and auxiliary machinery” for various types of vessels, “in‐
clud[ing] tank vessels, cargo and miscellaneous vessels, mobile
offshore drilling units, off shore supply vessels, and small pas‐
senger vessels,”85 while its equipment approval regulations in‐
corporate voluntary consensus standards for, among other
things, life preservers,86 flares and distress signals,87 inflatable
liferafts,88 and thermal protective aids.89 The Federal Energy
Regulatory Commission (FERC) uses incorporation by reference
to make industry standards, usually created by the North
American Energy Standards Board (NAESB), mandatory for
wholesale and retail energy providers.90 The Nuclear Regulatory
Commission (NRC) incorporates voluntary consensus standards
into its regulations governing construction permits and licenses
for nuclear reactors.91 Other agencies, including the Consumer
84. NIST, STANDARDS INCORPORATED BY REFERENCE (SIBR) DATABASE,
http://standards.gov/sibr/query/index.cfm (last visited Nov. 22, 2012).
85. Rebecca Day & Tom Mielke, Incorporation by Reference: Using external expertise
to make Coast Guard regulations more efficient, PROCEEDINGS, available at
http://www.uscg.mil/proceedings/spring2010/articles/26_Mielke,Day_Incorporati
onByReference.pdf; see, e.g., 46 C.F.R. § 30.01‐3 (2012) (listing standards incorpo‐
rated by reference into regulations applicable to tank vessels); id. § 95.01‐5 (listing
standards incorporated by reference into regulations regarding fire protection
equipment for cargo and miscellaneous vessels).
86. See 46 C.F.R. §§ 160.002‐1, 160.005‐1 (2012).
87. See id. §§ 160.021‐1, 160.022‐1, 160.023‐1, 160.024‐1, 160.036‐1, 160.037‐1, 160‐057‐1.
88. See id. § 160.151‐5.
89. See id. § 160.174‐3.
90. See 18 C.F.R. § 38.2; see also Standards for Business Practices and Communi‐
cation Protocols for Public Utilities, 74 Fed. Reg. 63,287, 63,289 (Dec. 3, 2009) (to be
codified at 18 C.F.R. pt. 38) (“NAESB is a non‐profit standards development or‐
ganization established in January 2002 that serves as an industry forum for the
development of business practice standards that promote a seamless marketplace
for wholesale and retail natural gas and electricity.”). See generally Boswell and
Cargas, supra note 65 (tracing the history of the NAESB, exploring its activities,
and examining legal and policy issues arising from FERC’s incorporation by ref‐
erence of NAESB standards in federal energy regulation).
91. See, e.g., 10 C.F.R. § 50.55a (2012).

152

Harvard Journal of Law & Public Policy

[Vol. 36

Product Safety Commission (CPSC)92 and the Occupational
Health and Safety Administration (OSHA),93 use voluntary con‐
sensus standards in health and safety regulation, as contem‐
plated by Recommendation 78‐4.94 These examples, though far
from exhaustive, suggest the diverse purposes for which agen‐
cies incorporate standards by reference in regulations.
4.

Emerging Issues with Incorporation by Reference

Incorporation by reference has been consistently—and uncriti‐
cally—viewed as the appropriate way for agencies to “use” vol‐
untary consensus standards in regulations. Recommendation 78‐
4, taking the view of the Conference’s consultant, Professor
Robert W. Hamilton of the University of Texas School of Law,95
identified incorporation by reference as the preferable means for
including a voluntary standard in a mandatory health and safety
regulation.96 And Circular A‐119 defines agency “use” of a vol‐
untary consensus standard as “inclusion of a standard in whole,
in part, or by reference in regulation(s).”97
The time has come to think critically about the policy implica‐
tions of incorporation by reference. Over the nearly four decades
since federal policy began to embrace the use of voluntary con‐
sensus standards in regulation, incorporation by reference has
expanded considerably. Agencies have had time to identify and
begin to address the issues the practice raises. The rise of e‐
government has transformed the relationship between agencies
and the public, throwing the public access implications of incor‐
92. See, e.g., 16 C.F.R. § 1420.3 (2012) (referencing an ANSI standard in a safety
standard for all terrain vehicles).
93. See, e.g., 29 C.F.R. § 1910.6 (2012) (identifying various standards incorporated
by reference into OSHA regulations).
94. Recommendation 78‐4, supra note 75.
95. Hamilton, supra note 21, at 1458 (“On balance, . . . incorporation by reference
should be the primary method of using acceptable voluntary standards.”). Profes‐
sor Hamilton devoted just a few pages (out of more than 150) to the subject. See id.
at 1457–60.
96. See Recommendation 78‐4, supra note 75, ¶ 7(f) (“The agency may adopt a
voluntary standard into its regulations either by placing the text of the standard in
the regulation, or, preferably, by incorporating the standard by reference pursu‐
ant to 1 CFR Part 51.”).
97. CIRCULAR A‐119, supra note 5, ¶ 6(a)(1) (emphasis added). “[T]he reference
must include the date of issuance,” id. ¶ 6(j), thus requiring incorporation of a
particular version of a standard.

No. 1]

Incorporation by Reference

153

poration by reference into sharp relief. The passage of time has
similarly revealed the significant challenges agencies face in
keeping regulations up to date as standards are revised to reflect
ever‐evolving technical knowledge. In similar fashion, time and
experience have revealed difficulties with OFR’s approval proc‐
ess and potential pitfalls in drafting incorporating regulations.
The rest of this Article confronts these considerable challenges.
II.

THE PUBLIC ACCESS PROBLEM

The greatest challenge presented by incorporation by refer‐
ence is that it impedes access to the law. In all cases, the prac‐
tice requires interested parties to find material outside of the
CFR in order to view an entire regulation. In some cases, if the
incorporated material is copyrighted and sold by a private par‐
ty, incorporation by reference may even require interested par‐
ties to pay to see the law.
The traditional solution to this public access problem has been
to require OFR and promulgating agencies to keep incorporated
documents on file for public inspection in agency offices.98 Dur‐
ing the rulemaking stage, this is no solution at all. Materials are
not “incorporated by reference,” thereby triggering the public
inspection requirement, until the final rule is promulgated.99
Even following promulgation, public inspection is inadequate
because it requires interested parties to physically go to an
agency office—often located only in Washington, D.C.—to view
the law. In the past, this limited availability was considered suf‐
ficient, but the burden is intolerable in an era of open govern‐
ment and increasingly ubiquitous use of the Internet.
An alternative approach would be to avoid incorporation by
reference altogether by printing out the text of the extrinsic ma‐
terial verbatim in the text of the regulation. This approach
would significantly lengthen the CFR, thereby defeating the
original purpose of permitting incorporation by reference. This
concern may have less force as the CFR transitions from its tra‐
ditional print format to an electronic format.100 However, there
98. See 1 C.F.R. §§ 51.9(b)(4), 5.2 (2012).
99. See supra note 49 and accompanying text.
100. The CFR is available in an online, electronic format that is updated con‐
tinuously as regulations are finalized and published in the Federal Register. But
this e‐CFR is not legally authoritative because it does not yet include a tool that

154

Harvard Journal of Law & Public Policy

[Vol. 36

are other difficulties with this approach. In some cases, the ma‐
terial may include charts or diagrams that simply do not fit in
the CFR. More generally, including lengthy and highly techni‐
cal materials in the text of a regulation may detract from its
readability and clarity.101 The regulatory standard might easily
be lost amid the complexity of the supporting technical stan‐
dards. Finally, if the material is copyrighted, reprinting it in the
text of the regulation may simply not be an option.
The ideal solution would be for agencies to post incorporated
materials online. This is an easy solution for incorporated ma‐
terials that are not copyrighted. For example, the Federal
Communications Commission (FCC) incorporates FAA advi‐
sory circulars,102 and OSHA incorporates certain safety re‐
quirements created by other federal agencies.103 Such docu‐
ments are generally ineligible for copyright protection because
they are authored by the United States government.104 Other
materials, such as the state environmental regulations that EPA
incorporates by reference105 may similarly not be subject to
copyright or other legal protections. If an agency incorporates
such material by reference, the agency should make a copy of it
available electronically in a location where interested parties
will be able to find it easily.
If the incorporated material is copyrighted—as is often the case
with voluntary consensus standards—posting it online is more
difficult. Although a recent judicial decision,106 combined with

can take a “snapshot” of effective regulations on a particular date. A regulation
cannot be enforced unless the content of the law on the date of an alleged viola‐
tion is known with certainty.
101. See, e.g., 1 C.F.R. § 51.7(a)(2) (2012) (illustrating the type of information that
could make a regulation less readable).
102. See, e.g., 47 C.F.R. § 17.23 (2011) (“[E]ach new or altered antenna struc‐
ture . . . must conform to the FAA’s painting and lighting recommendations set
forth on the structure’s FAA determination of ‘no hazard,’ as referenced
in . . . FAA Advisory Circulars.”).
103. See 29 C.F.R. § 1926.1000(f)(2)–(3) (2012).
104. See 17 U.S.C. § 105 (2011) (“Copyright protection under this title is not
available for any work of the United States Government, but the United States
Government is not precluded from receiving and holding copyrights transferred
to it by assignment, bequest, or otherwise.”).
105. See, e.g., 40 C.F.R. § 88.104‐94(k)(2) (1995).
106. See Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791 (5th Cir. 2002).

No. 1]

Incorporation by Reference

155

pressure from some scholars, activists, regulated parties, and gov‐
ernment officials,107 have raised questions regarding the strength
of copyrights in incorporated standards, federal law and policy
requires agencies to respect copyright. Agencies can be liable for
copyright infringement108 and, when using voluntary consensus
standards, are required to “observe and protect the rights of the
copyright holder and any other similar obligations.”109 In light of
these legal principles, some agencies have incorporated by refer‐
ence for the express purpose of respecting copyright.110
Aggressive approaches—such as changing copyright law,
requiring a waiver of rights as a condition of incorporation, or
buying out the copyright—are obvious but suboptimal solu‐
tions. Standard development is expensive. Most standard de‐
velopers operate as nonprofit organizations and sell copies of
their standards to fund standard‐development activities. The
alternative is to charge membership fees, but this approach
erects barriers to participating in the standard‐development
process. Large corporations would likely be able to absorb the‐
se costs, but small businesses, consumer groups, and public
interest organizations would find it difficult to participate in
the standard‐development process. Thus, forcing standard de‐
velopers to change their business model would likely reduce
the value of the resulting standards to the public and reduce
the availability of standards appropriate for regulatory use.
Additionally, private standard developers sometimes develop
standards at the request of a government agency, saving the
agency time and resources. But standard developers would be
less inclined to take on such projects if they knew they would
107. See infra Part II.C.
108. See 28 U.S.C. § 1498(b) (2006).
109. CIRCULAR A‐119, supra note 5, ¶ 6(j).
110. See, e.g., Production Measurement Documents Incorporated by Reference,
75 Fed. Reg. 72,761 (proposed Nov. 26, 2010) (to be codified at 30 C.F.R. pt. 250)
(“When a copyrighted technical industry standard is incorporated by reference
into our regulations, [Bureau of Ocean Energy Management, Regulation and En‐
forcement] is obligated to observe and protect that copyright. BOEMRE provides
members of the public with Web site addresses where these standards may be
accessed for viewing—sometimes for free and sometimes for a fee. The decision to
charge a fee is decided by standard developing organizations.”); Product Noise
Labeling Hearing Protection Devices, 74 Fed. Reg. 39,150, 39,153 (proposed Aug.
5, 2009) (codified at 40 C.F.R. pt. 211) (“In recognition of the copyrights that pro‐
tect these standards, the Agency is ‘incorporating by reference,’ into subpart B, the
following ANSI and IEC standards.”).

156

Harvard Journal of Law & Public Policy

[Vol. 36

not be able to recoup their costs. Finally, buying out the copy‐
right is not only impractical in the current budget climate, but
would also eliminate cost reduction as one of the major benefits
of federal standards policy. In short, the public‐private partner‐
ship in standards is both highly beneficial and highly complex
and likely would be undermined by an overly aggressive ap‐
proach to incorporation by reference’s public access problem.
My research revealed a more promising, collaborative solu‐
tion. In the spirit of public‐private partnership, and within the
bounds of established federal law and policy, some agencies
have worked with standard developers to make standards
available electronically during rulemaking and following prom‐
ulgation. Technological tools, such as read‐only functionality,
provided mutually agreeable methods for increasing access
while protecting copyright. Agencies that reported success with
this approach identified a number of factors they consider to de‐
termine what degree of access is necessary and how important
such access is in relation to other regulatory goals that may be at
stake. Replicating this approach in other agencies may increase
access while protecting and promoting other regulatory values,
including the public‐private partnership in standards.
A.

Threshold Questions

We must first consider two threshold questions: (1) to whom
should incorporated materials be “reasonably available”; and
(2) should OFR or the promulgating agency take primary re‐
sponsibility for ensuring reasonable availability?
1.

To Whom Must Materials Be Reasonably Available?

With respect to the first question, publication requirements
historically have focused on ensuring that regulated parties are
notified of the regulations with which they must comply.111 In‐
111. Indeed, the Federal Register and CFR were created in 1935, in response to a
Supreme Court decision involving an agency’s attempt to enforce regulations
that, as it turned out, did not exist. See Panama Ref. Co. v. Ryan, 293 U.S. 388
(1935). See generally Erwin N. Griswold, Government in Ignorance of the Law—A Plea
for Better Publication of Executive Legislation, 48 HARV. L. REV. 198 (1934) (explain‐
ing the problem solved by the Federal Register Act); H. COMM. ON JUDICIARY,
74TH CONG., PUBLICATION OF GOVERNMENTAL RULES AND REGULATIONS, H. Rep.
No. 74‐280, at 2 (1935) (“[R]ules and regulations frequently appear in separate
paper pamphlets, some printed on single sheets of paper and easily lost. Any at‐

No. 1]

Incorporation by Reference

157

deed, courts have consistently held that the law “requires pub‐
lication of those policies of which the public must be aware in
order to conform its conduct to the agency’s requirements.”112 This
principle finds more specific expression in the statutory re‐
quirement that materials incorporated by reference be “rea‐
sonably available to the class of persons affected thereby.”113
Such availability is essential to the CFR’s notice function.114 If
an agency does not get OFR’s approval to incorporate by refer‐
ence, courts will not allow the agency to enforce the affected
regulatory commands.115
Today, the focus should be broader, going beyond regulated
parties to include other interested parties and members of the
public. Modern administrative law and policy increasingly
value public engagement in agency processes and improved
access to regulations and supporting documents. E‐rulemaking
initiatives are perhaps the most prominent, albeit not the only,
manifestations of this modern shift in focus. Agencies should
bring this broader focus to bear on incorporation by reference
by ensuring that incorporated materials are “reasonably avail‐
able” to regulated and other interested parties.

tempt to compile a complete private collection of [them] . . . would be wellnigh
impossible. No law library, public or private, contains them all. Officials of the
department issuing them frequently do not know all of their own regulations.”).
112. Bunge Corp. v. United States, 5 Cl. Ct. 511, 523 (1984) (emphasis added); see
also Pitts v. United States, 599 F.2d 1103, 1108 (1st Cir. 1979) (“The purpose of pub‐
lication in the Federal Register is public guidance.”); Hogg v. United States, 428
F.2d 274, 280 (6th Cir. 1970) (holding that “the requirement for publication at‐
taches only to matters which if not published would adversely affect a member of
the public.”).
113. 5 U.S.C. § 552(a) (2006); see also 1 C.F.R. § 51.7(a)(4) (2012) (restating the
statutory language with the additional requirement that the material be “usable
by the class of persons affected”); PPG Indus., Inc. v. Costle, 659 F.2d 1239, 1250
(D.C. Cir. 1981) (explaining that “[i]f a required definition or procedure is part of a
rule, it must be published or incorporated by reference in the Federal Register”).
114. The Federal Register and CFR were created in 1935 to provide a centralized
publication of administrative materials so that both regulated parties and gov‐
ernment officials would have actual notice of the regulatory requirements. See
generally Griswold, supra note 111.
115. See, e.g., Appalachian Power Co. v. Train, 566 F.2d 451, 455 (4th Cir. 1977).

158

Harvard Journal of Law & Public Policy
2.

[Vol. 36

Which Agency Should Ensure
Reasonable Availability?

A second threshold question is whether OFR or the promul‐
gating agency should be charged with the primary responsibil‐
ity of ensuring reasonable availability. To be sure, the statute
that permits incorporation by reference arguably vests OFR
with this responsibility, providing that a “matter reasonably
available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by refer‐
ence therein with the approval of the Director of the Federal
Register.”116 OFR regulations require reasonable availability as
a condition of approval to incorporate.117 But in practice, OFR
enforces the requirement minimally. OFR usually considers it
sufficient that the material be available for purchase some‐
where, regardless of cost.118
As a practical matter, OFR is poorly situated to enforce a
more exacting requirement.119 As discussed below,120 a mean‐
ingful evaluation of reasonable availability entails considering
a wide array of situation‐specific facts. Are the regulated par‐
ties large corporations or small entities that are more sensitive
to cost? What is the overall cost of complying with the regula‐
tion and how does the cost of the standard compare to the costs
of compliance? What types of parties are likely to need access
to the standard during rulemaking and are they likely to be
able to bear the cost? Are they likely to already have copies of
the standard by virtue of their participation in the standard‐
116. 5 U.S.C. § 552(a)(1) (2006).
117. See 1 C.F.R. § 51.1(a), 51.7(a)(4) (2012).
118. In early 2012, OFR put out for public comment a petition requesting signifi‐
cant changes to OFR’s incorporation by reference regulations. See Incorporation
by Reference, 77 Fed. Reg. 11,414 (Feb. 27, 2012) (to be codified at 1 C.F.R. pt. 51).
Among other things, the petition urged OFR to take greater responsibility for
ensuring that incorporated materials are freely available online. See id. The com‐
ment period closed on June 1, 2012, see Incorporation by Reference, 77 Fed. Reg.
16,761 (Mar. 22, 2012) (to be codified at 1 C.F.R. pt. 51), and as of this writing, OFR
had not yet acted on the petition.
119. See generally Letter from the Office of the Chairman of the Admin. Conference
of the United States, to Michael L. White, Acting Dir., Office of the Fed. Register
(June 1, 2012), available at http://www.acus.gov/wp‐content/uploads/downloads/
2012/06/Final‐ACUS‐Response‐to‐OFR‐Petition‐6‐1‐12.pdf (commenting on the in‐
corporation by reference petition).
120. See infra Part II.E.

No. 1]

Incorporation by Reference

159

development process? All of these questions—and others—
require subject matter expertise that only the promulgating
agency possesses.
Another difficulty is that OFR is not involved early enough
in the process to ensure reasonable availability when it is need‐
ed most—during the rulemaking process. Agencies should be
concerned about the availability of a standard even before they
propose a rule. If there is more than one standard that will suit
the agency’s regulatory purpose, the agency should consider
reasonable availability when choosing among available stan‐
dards. Agencies also often have longstanding working rela‐
tionships with certain standard developers and are better posi‐
tioned to collaborate with them early in the rulemaking process
to ensure standards or other materials being considered for in‐
corporation are reasonably available.
Finally, my research suggests that OFR may not have the nec‐
essary political capital or resources to enforce a stronger stan‐
dard of availability. In the status quo, agencies often chafe at
OFR’s enforcement of existing standards for incorporation by
reference. Some view it as an unwarranted intrusion into their
substantive regulatory authority. Even putting this difficulty to
one side, there remains the question of resources. If OFR were to
enforce a more stringent availability standard, or were to be in‐
volved earlier in the rulemaking process, it would need more
personnel and resources. The three employees who are currently
responsible for approving all incorporations by reference simply
could not take on the task. In these austere times, it is unlikely
that Congress would dedicate the necessary funds to expand
OFR’s capabilities on this front. For these reasons, promulgating
agencies should undertake primary responsibility for ensuring
the reasonable availability of incorporated materials.
B.

Evaluating Copyright Claims

To what degree does copyright limit agencies’ ability to pro‐
actively address incorporation by reference’s public access
problem? This section first considers whether agency efforts to
expand access to incorporated, copyrighted materials might
constitute fair use. It next considers whether copyrighted mate‐
rials enter the public domain by virtue of their incorporation by
reference. Finally, it considers whether a material, once incor‐
porated, merges into the “fact” that is the law, thereby losing
copyright protection under the doctrine of merger.

160

Harvard Journal of Law & Public Policy
1.

[Vol. 36

Fair Use

Courts have long held that some copying does not infringe
copyright because it is a defensible “fair use” of the copy‐
righted work.121 This doctrine of fair use, now codified in Sec‐
tion 107 of the Copyright Act,122 “permits [and requires] courts
to avoid rigid application of the copyright statute when, on oc‐
casion, it would stifle the very creativity which that law is de‐
signed to foster.”123 Fair use is traditionally viewed as an af‐
firmative defense,124 excusing the copying of a work “for
purposes such as criticism, comment, news reporting, teach‐
ing . . . , scholarship, or research.”125 The statute declares, how‐
ever, that a fair use “is not an infringement of copyright.”126
Government reproduction of copyrighted work may be a fair
use under Section 107,127 but there is no per se rule that gov‐
ernment use is fair use.128

121. NIMMER ON COPYRIGHT § 13.05 (2011).
122. See 17 U.S.C. § 107 (2006).
123. Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569, 577 (1994) (alteration in
original) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)) (internal quotation
marks omitted).
124. See, e.g., id. at 590 (stating that “fair use is an affirmative defense”); but see
Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996) (Birch, J.)
(“Although the traditional approach is to view ‘fair use’ as an affirmative defense,
this writer, speaking only for himself, is of the opinion that it is better viewed as a
right granted by the Copyright Act of 1976,” but “[r]egardless . . . , it is clear that
the burden of proving fair use is always on the putative infringer.”).
125. 17 U.S.C. § 107.
126. Id.
127. See, e.g., Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir. 1982) (holding a
local government made “fair use” of copyrighted material when it used “abbrevi‐
ated copies” of an adult film as evidence in a nuisance abatement proceeding,
reasoning the “use was neither commercially exploitive of the copyright, nor
commercially exploitive of the copyright holder’s market”); 4 FOIA UPDATE, no. 4,
1983, available at http://www.justice.gov/oip/foia_updates/Vol_IV_4/page3.htm
(“[T]he position of the Department of Justice is that the release of [nonexempt
copyrighted] materials under the FOIA is a defensible ‘fair use.’”).
128. Whether and Under What Circumstances Government Reproduction of
Copyrighted Materials is a Noninfringing “Fair Use” Under Section 107 of the
Copyright Act of 1976, 1999 WL 33490240 (O.L.C. Apr. 30, 1999), available at
http://www.justice.gov/olc/pincusfinal430.htm (last visited Nov. 22, 2011); see also
NIMMER, supra note 121, § 13.05[D][2] (“Reproduction of a work by a governmen‐
tal instrumentality is not, in itself, necessarily privileged as a fair use.”).

No. 1]

Incorporation by Reference

161

Whether a particular use of copyrighted work constitutes a
“fair use” is determined by reference to four factors enumer‐
ated in Section 107:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educa‐
tional purposes; (2) the nature of the copyrighted work; (3)
the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and (4) the effect of the
use upon the potential market for or value of the copy‐
righted work.129

The statute does not explain how these four factors ought to be
considered. In keeping with the common law approach codi‐
fied in Section 107, however, courts evaluate fair use on a case‐
by‐case basis,130 “weigh[ing] the factors the way they deem best
in individual cases.”131 Because the analysis is highly fact‐
driven, “summary judgment or trial is [typically] required to
ventilate the pertinent facts” and enable the court to explore
how they interact.132 “[P]owerful arguments [often] exist on
both sides of each factor.”133 Thus, “reasonable minds can look
at different aspects of a single situation and reach opposite
conclusions regarding purpose, nature, amount of copying,
and market effect.”134
In the incorporation by reference context, the issue of fair use
may arise in a variety of ways. For example, an agency may
want to reprint all or some portion of a copyrighted work, such
as a standard, in the text of a rule rather than incorporating the
material by reference. Alternatively, an agency may want to
publish the full text of a standard in PDF format in an elec‐
tronic docket to facilitate public comment on a proposed rule
that would incorporate the standard by reference. Another
possibility is that an agency, having adopted a regulation that
129. NIMMER, supra note 121, § 13.05.
130. See, e.g., Harper & Row Publ’rs, Inc. v. Nation Enters., 471 U.S. 539, 549
(1985) (“Section 107 requires a case‐by‐case determination whether a particular
use is fair, and the statute notes four nonexclusive factors to be considered. This
approach was ‘intended to restate the [pre‐existing] judicial doctrine of fair use,
not to change, narrow, or enlarge it in any way.’” (quoting H. R. Rep. No. 94‐1476,
66 (1976)) (alteration in original).
131. NIMMER, supra note 121, § 13.05[A][5][a].
132. Id.
133. Id. § 13.05[A][5][c].
134. Id.

162

Harvard Journal of Law & Public Policy

[Vol. 36

incorporates by reference, may want to make the incorporated
material widely available in electronic format on its website.
The fact‐driven nature of the fair use analysis makes it difficult
to provide abstract guidance about how fair use might apply in
the incorporation by reference context.135 Nonetheless, it is possi‐
ble to identify some broad principles by examining the doctrine in
light of an agency’s likely goals: (1) broadening availability by
providing copies of an entire copyrighted work in an electronic
docket or on an agency’s website; and (2) including some small
portion of a copyrighted work in the text of a regulation.136
a.

The Purpose and Character of the Infringing Use

The first factor—the purpose and character of the infringing
use—is perhaps the most difficult to assess in analyzing fair
use as a potential tool for broadening access to copyrighted ma‐
terials incorporated by reference. In evaluating the purpose
and character of the infringing use, courts consider whether
that use is transformative, “having a new and different charac‐
ter and expression than” the copyrighted work.137 A finding of
fair use is also more likely where the infringer “transform[s]
the purpose or character of the work by incorporating it into a
larger commentary or criticism”138 or “larger biographical
work.”139 Finally, evaluating the “purpose and character” factor
requires courts to consider “whether the ‘use is of a commercial
nature or is for nonprofit educational purposes.’”140
If an agency’s goal is to publish the full text of a copyrighted
standard in a regulation, online docket, or on its website, the
first factor may favor neither the agency nor the standard de‐
veloper. Courts have acknowledged that some fair use cases
135. See, e.g., Gaylord v. United States, 595 F.3d 1364, 1372 (Fed. Cir. 2010) (“Be‐
cause the doctrine is an equitable rule of reason, no generally applicable definition
is possible, and each case raising the question must be decided on its own facts.”)
(internal quotation marks omitted).
136. These two ends of the spectrum are used as reference points to give some
focus to the fair use discussion. It bears emphasizing, however, that there are
many intermediate possible circumstances in the incorporation by reference con‐
text that may cause an agency to consider the scope of fair use.
137. Gaylord, 595 F.3d at 1373 (internal quotation marks omitted).
138. Id.
139. Id. at 1373 n.3.
140. Id. at 1374 (quoting 17 U.S.C. § 107 (2006)).

No. 1]

Incorporation by Reference

163

“demonstrate the tension inherent in the ‘purpose’ and ‘charac‐
ter’ elements” because the “purpose” arguments favor one par‐
ty, while the “character” arguments favor the other.141 A case
involving an agency’s reproduction of an entire copyrighted
work to improve the transparency of administrative processes
or the law would likely be such a case.
College Entrance Examination Board v. Pataki illustrates how
“character” may favor the standard developer, while “pur‐
pose” may favor the agency.142 The case involved a state law
that “mandated disclosure (and authorized subsequent repro‐
duction) of ‘secure test’ questions administered within [the
state’s] borders, notwithstanding any adverse impact that
would thereby accrue to the copyright owners of the tests.”143
The copyright owners argued that the law was preempted by
the Copyright Act because it infringed on the copyright and
was not fair use. The court agreed.144 The court concluded that
the character of the “disclosure requirements constitute [a]
non‐transformative use”145 because it authorized simple and
complete reproduction of the copyrighted works.146 Character
thus weighed in favor of the copyright holders. On the other
hand, the uses of the disclosure requirements were “‘non‐profit
educational purposes’ expressly protected by section 107(1)
that serve important public interests” in “ensuring the fairness
and objectivity of standardized school admissions tests, evalu‐
ating the accuracy of the scoring process, eliminating potential
bias, and opening up a process that has a major impact on the
lives and careers of students in” the state.147 Purpose thus
weighed in favor of the state. Because character favored one
party, but purpose favored the other, the court was compelled

141. See Coll. Entrance Examination Bd. v. Pataki, 889 F. Supp. 554, 568
(N.D.N.Y. 1995).
142. Id.
143. NIMMER, supra note 121, § 13.05[A][4]; Coll. Entrance Examination Bd., 889 F.
Supp. at 564 (explaining the state law required copyright holders to disclose test
forms and questions and “classifie[d] these disclosed materials as public records
and, thereby, subject[ed] them to disclosure to, and reproduction by, the public”).
144. Coll. Entrance Examination Bd., 889 F. Supp. at 575.
145. Id. at 568.
146. See id. at 567.
147. Id. (citations omitted) (internal quotation marks omitted).

164

Harvard Journal of Law & Public Policy

[Vol. 36

to “conclude that [the character and purpose] factor favor[ed]
neither party.”148
The same result would likely obtain in a case involving
agency reproduction of an entire copyrighted standard. In such
a case, the character of the use is probably not transformative
because it consists of simple reproduction of the copyrighted
work.149 This conclusion would be more likely if the agency pro‐
vided a copy of the entire standard—it might be less likely if the
agency copied only an insubstantial part of a standard, say, in
the text of a regulation.150 Character may thus favor the standard
developer. The agency’s purpose, however, would be to further
the public interest in the transparency and access to the law. This
noncommercial purpose, though noneducational, may tip pur‐
pose in favor of the government.151 Overall, this mix of consid‐
erations may compel the conclusion that, in the context of incor‐
poration by reference, the character and purpose factor favors
neither the standard developer nor the agency.
b.

The Nature of the Copyrighted Work

The second factor—the nature of the copyrighted work—
“‘recogni[zes] that some works are closer to the core of in‐
tended copyright protection than others, with the consequence
that fair use is more difficult to establish when the former
works are copied.”152 This factor typically weighs in favor of
the copyright holder when the work is creative or expressive,
although it is more likely to weigh in favor of the defendant if
the work is factual or informational.153 In conducting the analy‐
sis, courts “may also consider whether [the work] represent[s]

148. Id. at 568.
149. See Gaylord v. United States, 595 F.3d 1364, 1374 (Fed Cir. 2010); Coll. En‐
trance Examination Bd., 889 F. Supp. at 567–68.
150. See, e.g., NIMMER, supra note 121, § 13.05[D][1] (“A number of courts have
held that the defense of fair use is never available to immunize copying that re‐
sults in similarity that is not only substantial, but is indeed virtually complete or
almost verbatim,” although “there may be certain very limited situations wherein
copying of even the entire work for a different functional purpose may be re‐
garded as a fair use.”).
151. See Coll. Entrance Examination Bd., 889 F. Supp. at 568.
152. Gaylord, 595 F.3d at 1374 (quoting Campbell v. Acuff‐Rose Music, Inc., 510
U.S. 569, 586 (1994)).
153. See id.

No. 1]

Incorporation by Reference

165

a substantial investment of time and labor made in anticipation
of a financial return.”154
In the incorporation by reference context, this factor may fa‐
vor the copyright holder. On one hand, standards are often
highly technical and contain or have a basis in significant fac‐
tual information, a characteristic that might tilt the second fac‐
tor in favor of the agency. On the other hand, as with the stan‐
dardized test questions at issue in College Entrance Examination
Board, standards are developed via a “creative, imaginative,
and original” process.155 In most cases, the development of a
standard also requires “substantial investment of time and la‐
bor” and is undertaken “in anticipation of a financial return.”156
These considerations may weigh the second factor in favor of
the standard developer.
c.

The Amount and Substantiality of the Portion Used

The third factor—the amount and substantiality of the por‐
tion used—may cut in either direction in the incorporation by
reference context, depending on how the agency uses the copy‐
righted material. This “factor concerns whether ‘the amount
and substantiality of the portion used in relation to the copy‐
righted work as a whole . . . are reasonable in relation to the
purpose of the copying.’”157 In evaluating this factor, “[c]ourts
consider both the quantity and quality of the materials used.”158
Where an agency includes a small, qualitatively insubstantial
portion of a copyrighted work in the text of a regulation, this
factor will probably tip in favor of the agency. At the other end
of the spectrum, if an agency reproduced the full text of a copy‐
righted work in an electronic docket or on its website, this fac‐
tor would likely weigh in favor of the copyright owner. Indeed,
the “general” rule is that it “does not constitute a fair use if the
entire work is reproduced.”159
154. NIMMER, supra note 121, § 13.05[A][2][a] (citations omitted) (internal quota‐
tion marks omitted).
155. Coll. Entrance Examination Bd., 889 F. Supp. at 569 (internal quotation marks
omitted).
156. NIMMER, supra note 121, § 13.05[A][2][a].
157. Gaylord, 595 F.3d at 1375 (quoting Campbell, 510 U.S. at 586).
158. Id.
159. NIMMER, supra note 121, § 13.05[A][3]; see also, e.g., Am. Geophysical Union
v. Texaco, Inc., 60 F.3d 913, 926 (2d Cir. 1994) (explaining that although a conclu‐
sion that the defendant has reproduced an entire work “does not preclude a find‐

166

Harvard Journal of Law & Public Policy
d.

[Vol. 36

Market Impact

The fourth factor is “the effect of the use upon the potential
market for or value of the copyrighted work.”160 It “requires
courts to consider ‘whether unrestricted and widespread con‐
duct of the sort engaged in by the defendant . . . would result in
a substantially adverse impact on the potential market.’”161 The
“adverse impact” relevant here is limited to that which occurs
“by reason of usurpation of the demand for plaintiff’s work
through defendant’s copying of protectable expression from
such work.”162 If the infringing use eats into the copyright
holder’s market or destroys the value of the work by publiciz‐
ing it, the factor will weigh against fair use.163
Like the third factor, this factor may cut in either direction,
depending upon the nature of the use at issue. The inclusion of
an insubstantial part of a standard, such as a definition, in the
text of a regulation is unlikely to eat into the standard devel‐
oper’s market or otherwise destroy the value of the standard.
On the other hand, if the agency uses or reproduces the full text
of the standard, the fourth factor will likely tip in favor of the
copyright holder. Although it is no doubt true that incorpora‐
tion by reference increases the value of a work, the provision of
the full text of the work may negate that effect. The easier it is
for an interested party to access and use the standard as repro‐
duced by the agency, the less likely he or she is to purchase
that standard from the standard developer.
e. The Limited Usefulness of Fair Use
to Increase the Availability of Incorporated Materials
Fair use generally appears to be of limited usefulness to an
agency seeking to increase the accessibility of copyrighted ma‐
terials that are or may be incorporated by reference into regula‐

ing of fair use, it militates against such a finding, and weights the third factor in
favor of the publishers” (citing Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 449–50 (1984))).
160. 17 U.S.C. § 107(4) (2006).
161. Gaylord, 595 F.3d at 1375 (quoting Campbell v. Acuff‐Rose Music, Inc., 510
U.S. 569, 590).
162. NIMMER, supra note 121, § 13.05[A][4].
163. See id.

No. 1]

Incorporation by Reference

167

tions. Because fair use requires a highly fact‐intensive, case‐by‐
case analysis, it is difficult to draw conclusions about its scope
in the abstract. Nonetheless, two principles emerge: First, fair
use may be easier to establish when an agency wants to reprint,
rather than incorporate by reference, a small portion of a copy‐
righted work into the text of a regulation; and second, the fair
use doctrine is probably not useful as a basis for making the
full text of copyrighted materials more broadly accessible to
regulated and other interested parties.
2.

Public Domain

In a 2002 en banc decision in Veeck v. Southern Building Code
Congress International, Inc.,164 the Fifth Circuit held that, in cer‐
tain circumstances, a privately authored code adopted as law
may enter the public domain qua law. The opinion thus cast
some doubt on the scope of copyright protection for privately
authored materials incorporated by reference into law.
The Veeck case began in 1997, when Peter Veeck, the operator
of “a non‐commercial website that provide[d] information about
north Texas,”165 decided to post the local building codes of two
small towns in north Texas, Anna and Savoy. Both towns “had
adopted the 1994 edition of the Standard Building Code written
by [the] appellee, Southern Building Code Congress Interna‐
tional, Inc. (‘SBCCI’).”166 When he had trouble getting a copy of
the codes from the towns, Veeck purchased a copy from SBCCI
for $72.00. He then cut and pasted the text to his website, remov‐
ing any suggestion that the codes were published by SBCCI and
identifying them simply as “the local building codes of Anna
and Savoy, Texas.”167 SBCCI “demanded that [Veeck] cease and
desist from infringing its copyrights.”168 The district court
granted summary judgment in favor of SBCCI, issuing a perma‐
nent injunction and awarding monetary damages.169 The Fifth
Circuit upheld the decision on appeal, but “elected to rehear
[the] case en banc because of the novelty and importance of the

164. 293 F.3d 791 (5th Cir. 2002).
165. Id. at 793.
166. Id.
167. Id.
168. Id. at 794.
169. Id.

168

Harvard Journal of Law & Public Policy

[Vol. 36

issues it present[ed].”170 The central issue was “the extent to
which a private organization may assert copyright protection for
its model codes, after the models have been adopted by a legisla‐
tive body and become ‘the law.’”171
The en banc court’s “short answer” was that even though a
code’s author retains copyright over a model code after it is
adopted into law, the author cannot claim copyright over the
code qua law.172 The decision was grounded in long‐standing
Supreme Court precedents173 that the majority read “to enunci‐
ate the principle that ‘the law,’ whether it has its source in judi‐
cial opinions or statutes, ordinances or regulations, is not sub‐
ject to federal copyright law.”174 Because the law must be freely
available, reasoned the court, its accessibility to the public can‐
not be conditioned on the consent of a copyright holder.175 The
court found some support for this conclusion in a First Circuit
case, Building Officials & Code Administrators v. Code Technology,
Inc. (BOCA),176 which expressed doubt about the continuing
viability of copyright protection for a code adopted as law, but
did not actually decide the issue.177
Veeck did not address standards incorporated by reference into
federal regulations.178 The majority explicitly limited its holding
to “the wholesale adoption of a model code promoted by its au‐
thor . . . for use as legislation,” distinguishing cases involving the

170. Id.
171. Id. at 793.
172. Id. (holding that “[a]s model codes,” a private “organization’s works retain
their protected status,” but “as law, the model codes enter the public domain and
are not subject to the copyright holder’s exclusive prerogatives”).
173. See id. at 794–99 (citing and discussing Banks v. Manchester, 128 U.S. 244
(1888); Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)).
174. Id. at 800.
175. See id. at 798–800.
176. 628 F.2d 730, 732–35 (1st Cir. 1980).
177. See id. at 732–35; see also John G. Danielson, Inc. v. Winchester‐Conant
Props., Inc., 322 F.3d 26, 38–40 (1st Cir. 2003) (explaining that BOCA left open the
difficult question of copyright protection for materials incorporated by reference
into law, but continuing to leave the question open because the issue before the
court, copyright for materials referenced in government contracts, did not raise
the same concerns); Veeck, 293 F.3d at 798–800 (citing and discussing BOCA).
178. See Veeck, 293 F.3d at 803–04.

No. 1]

Incorporation by Reference

169

“official incorporation of extrinsic standards.”179 One such case
was CCC Information Services, Inc. v. Maclean Hunter Market Re‐
ports, Inc.,180 in which the Second Circuit rejected an argument
that the Red Book, a compendium of used car values, entered
the public domain when it was incorporated by reference in “the
insurance statutes or regulations of several states.”181 The argu‐
ment was “that the public must have free access to the content of
the laws that govern it,” and “if a copyrighted work is incorpo‐
rated into the laws, the public need for access to the content of
the laws requires the elimination of the copyright protection.”182
Although “policy considerations” supported the argument, the
law did not.183 The Ninth Circuit reached a similar result in Prac‐
tice Management Information Corp. v. American Medical Ass’n,184
holding that the American Medical Association’s classification
system for medical procedures did not enter the public domain
by virtue of its being incorporated by reference into Medicare
and Medicaid regulations.185
Veeck and related cases show that the scope of copyright pro‐
tection for privately authored materials used in the law depends
upon a variety of factors, including the nature of the material at
issue, the purpose for which it was created, and the way the
government uses it. In Veeck, copyright protection was denied
for a building code written “precisely for use as legislation” and
adopted by local government.186 In contrast, voluntary consen‐
sus standards are usually “created by private groups for reasons
other than incorporation into law.”187 And agencies do not adopt
such standards as the law, but rather incorporate them by refer‐
ence—in whole or in part, and often with substantial modifica‐
tion or addition—to support substantive requirements of federal
179. Id. at 804. The practice of incorporation of extrinsic standards by reference
in regulations promulgated by federal agencies under Circular A‐119 was particu‐
larly in the court’s mind here. See id. at 804 n.20.
180. 44 F.3d 61 (2d Cir. 1994).
181. Id. at 73; see also id. at 74 (“We are not prepared to hold that a state’s refer‐
ence to a copyrighted work as a legal standard for valuation results in loss of the
copyright.”). The court noted that such a holding “would raise very substantial
problems under the Takings Clause of the Constitution.” Id. at 74.
182. Id. at 73.
183. See id. at 74.
184. 121 F.3d 516 (9th Cir. 1997).
185. See id. at 518–20.
186. Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 804–06 (5th Cir. 2002).
187. Id. at 804–05.

170

Harvard Journal of Law & Public Policy

[Vol. 36

regulations.188 Copyright cases involving such “official incorpo‐
ration of extrinsic standards” are, as Veeck acknowledged, “dis‐
tinguishable in reasoning and result.”189
3.

Merger Doctrine

The merger doctrine provides that “when there are so few
ways of expressing an idea, not even the expression is pro‐
tected by copyright.”190 This doctrine is grounded in Section
102(b) of the Copyright Act, which provides that “[i]n no case
does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of op‐
eration, concept, principle, or discovery, regardless of the form
in which it is described, explained, illustrated, or embodied in
such work.”191 To prevent the private monopolization of ideas,
courts apply the merger doctrine “such that ‘even expression is
not protected in those instances where there is only one or so
few ways of expressing an idea that protection of the expres‐
sion would effectively accord protection to the idea itself.’”192
The only court that appears to have considered the ques‐
tion—the Fifth Circuit in Veeck—held that the merger doctrine
applies when a copyrighted code is adopted as law.193 After
deciding the public domain issue discussed above, the Veeck
court alternatively held that “[t]he codes are ‘facts’ under copy‐
right law” because “[t]hey are the unique, unalterable expres‐
sion of the ‘idea’ that constitutes local law.”194 Reasoning that
there is only one way to express what the law requires, the
court held that, once adopted as a law, a copyrighted model
code becomes, to the extent of its adoption, “‘the law’ of the

188. CIRCULAR A‐119, supra note 5, ¶¶ 4(a), 6. As explained in greater detail be‐
low, see infra Part IV.A, the substantive policy established in a regulation should
be clear from its text, without the need to examine material incorporated by refer‐
ence. If this principle is properly observed, incorporated material plays only a
supporting role in a regulation.
189. See Veeck, 293 F.3d at 804.
190. BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1143 (11th Cir. 2007).
191. 17 U.S.C. § 102(b) (2006); see N.Y. Mercantile Exch., Inc. v. Intercontinental
Exch., Inc., 497 F.3d 109, 116 (2d Cir. 2007).
192. N.Y. Mercantile Exch., Inc., 497 F.3d at 116–17 (quoting Kregos v. Associated
Press, 937 F.2d 700, 705 (2d Cir. 1991)).
193. See Veeck, 293 F.3d at 801–02.
194. Id. at 801.

No. 1]

Incorporation by Reference

171

governmental entities and may be reproduced or distributed as
‘the law’ of those jurisdictions.”195 Veeck thus strongly supports
the proposition that a privately authored code, once adopted as
law, loses its copyright protection qua law.
Four considerations counsel some caution to an agency con‐
sidering relying on Veeck’s merger holding to increase the
availability of copyrighted works that have been or may be in‐
corporated by reference. First, if the agency has not yet incor‐
porated the material by reference, merger cannot yet have oc‐
curred. Veeck is thus no help to an agency in search of a basis
for making a copyrighted standard freely available for review
and comment during the rulemaking process. Second, an
agency that relied on Veeck to treat incorporated materials as
having merged into uncopyrightable law could be easily re‐
buffed. It is arguably unclear whether Veeck’s merger holding
extends to materials incorporated by reference, or whether the
court intended that distinction to apply only in the case of ma‐
terials adopted as law. As discussed above, the court clearly
distinguished between adoption and incorporation in the
course of addressing other precedent on the issue of public
domain. The section of the opinion addressing merger, how‐
ever, did not even mention the distinction between incorpora‐
tion and adoption. A bold agency could read this as implying
that incorporation is identical to adoption for purposes of
merger. It would be very easy, however, for a court to reject
that argument if it was disinclined to follow Veeck in a case in‐
volving a claim of merger resulting from incorporation rather
than adoption. Third, an agency that reproduces the full text of
a standard that has been incorporated by reference might not
itself be able to rely on merger as a defense to an infringement
claim. Some courts have taken the view that “if a defendant has
actually copied the plaintiff’s work, it is unlikely to be allowed
to rely on merger to avoid liability.”196 Finally, a court may be
reluctant “to hold that a[n agency’s] reference to a copyrighted
work . . . results in loss of the copyright” because such a hold‐
195. Id. at 802.
196. Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 n.12 (2d Cir.
1998) (quoting Kregos, 937 F.2d at 716 (Sweet, J., concurring in part and dissenting
in part)). Underlying this point is a fundamental disagreement among courts and
commenters regarding the very nature of the merger doctrine. Is it a question of
copyrightability or a defense to infringement? See generally Kregos, 937 F.2d at 714–
16 (Sweet, J., concurring in part and dissenting in part).

172

Harvard Journal of Law & Public Policy

[Vol. 36

ing “would raise very substantial problems under the Takings
Clause of the Constitution.”197
C.

An Emerging Public Policy Dispute

Veeck not only presented difficult legal questions—it revealed
a “profound issue of public policy” that has particular impor‐
tance in the context of federal regulation.198 As agency use of
voluntary consensus standards has evolved over the past sev‐
eral decades,199 so too have public expectations regarding the
accessibility of the law generally and of agency regulations and
processes more specifically.200 The ubiquitous availability and
use of the Internet have contributed to these higher expecta‐
tions, and e‐rulemaking initiatives have brought them to bear
in the regulatory context.201 This shift in administrative policy
towards greater transparency and openness is in tension with
copyright protection for incorporated materials. The Veeck deci‐
sion, although it has not had the significant impact initially ex‐
pected (or, at least by some, feared), has created some legal un‐
certainty regarding the continued viability of copyright for
materials incorporated by reference. That uncertainty may par‐
tially explain the relative dearth of judicial guidance regarding
the scope of copyright in this context.202
Legal scholars, open source standard developers, and non‐
profit public interest organizations have increasingly chal‐
lenged copyright protection for incorporated standards as a
matter of both law and policy.203 Legal scholars have argued,
197. CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61, 74 (2d Cir. 1994).
198. Lawrence A. Cunningham, Private Standards in Public Law: Copyright, Law‐
making and the Case of Accounting, 104 MICH. L. REV. 291, 297 (2005).
199. See Tyler R.T. Wolf, Note, Existing in a Legal Limbo: The Precarious Legal Position of
Standards‐Development Organizations, 65 WASH. & LEE L. REV. 807, 813–14 (2008).
200. See Paul T. Jaeger & John Carlo Bertot, Transparency and technological change:
Ensuring equal and sustained public access to government information, 27 GOV’T INFO.
Q., 371, 372 (2010).
201. See id.; Sharon S. Dawes, Stewardship and usefulness: Policy principles for in‐
formation‐based transparency, 27 GOV’T INFO. Q. 377, 378 (2010).
202. Cunningham, supra note 198, at 343 (arguing there is a lack of judicial guid‐
ance concerning private standards incorporated in public law).
203. See, e.g., Pamela Samuelson, Questioning Copyrights in Standards, 48 B.C. L.
REV. 193, 224 (2007); Brendan Greeley, One Man’s Quest to Make Information Free,
BLOOMBERG BUSINESS WEEK, Apr. 12, 2012, http://www.businessweek.com/
articles/2012‐04‐12/one‐mans‐quest‐to‐make‐information‐free.

No. 1]

Incorporation by Reference

173

albeit not unanimously, that materials incorporated by refer‐
ence into law should not be eligible for copyright.204 These ar‐
guments have special force in the context of information tech‐
nology standards,205 which are valuable precisely because they
are open source and freely available to all. Indeed, it is these
new, ever‐evolving technological standards that have created a
division within the voluntary standards community. As a gen‐
eral matter, established standard‐development organizations
continue to use a business model heavily dependent upon
copyright, and newer standard‐development organizations of‐
ten take an aggressive position in favor of open access.206 OA‐
SIS, an organization of the latter stripe, reported that its open‐
source technological standards are freely available online—and
are downloaded an average of four times per second. These
organizations have found allies among public interest organi‐
zations, including Public.Resource.Org, which has aggressively
sought free, electronic access to the law, including all materials
incorporated by reference into the CFR.207
Regulated parties have made similar arguments in comments
on proposed federal regulations that would incorporate copy‐
righted standards by reference. For example, FERC has, on
several occasions, considered comments critical of its practice
of incorporating copyrighted standards by reference into its
204. See, e.g., Cunningham, supra note 198, at 293 (developing a three‐part classi‐
fication system for determining copyright protection for standards embodied in
law); Samuelson, supra note 203, at 195 (questioning whether standards, “espe‐
cially those whose use is mandated by government rules, should be eligible for
copyright protection”). But see Katie M. Colendich, Comment, Who Owns “The
Law”? The Effect on Copyrights When Privately‐Authored Works are Adopted or Enacted
by Reference into Law, 78 WASH. L. REV. 589, 590 (2003) (“This Comment argues
that the Fifth Circuit’s Veeck decision created an unsupported exception to copy‐
right law.”).
205. See Samuelson, supra note 203, at 193–94.
206. Compare Intellectual Property Policy of ASTM International, ASTM
INTERNATIONAL, http://www.astm.org/Itpolicy.pdf (last visited Nov. 22, 2012)
(explaining that ASTM owns, maintains, and protects its copyright interests to
better fulfill its mission), with FAQ, OASIS, https://www.oasis‐open.org/org/faq
(last visited Nov. 22, 2012) (explaining that its members usually work on a roy‐
alty‐free basis).
207. See, e.g., Letter from Carl Malamud, President & CEO, Public.Resource.Org,
to Gary M. Stern, Gen. Counsel, Nat’l Archives & Records Admin. (July 14, 2009)
(on file with author); Letter from Raymond A. Mosley, Dir. of the Fed. Register, to
Carl Malamud, President & CEO, Public.Resource.Org, Inc. (Aug. 3, 2009) (on file
with author) (denying a FOIA request for copies of all technical standards incor‐
porated by reference into the CFR).

174

Harvard Journal of Law & Public Policy

[Vol. 36

regulations.208 In one recent proceeding, commenters urged
FERC to abandon the practice of incorporation by reference
and instead promulgate standards via the notice‐and‐comment
process, provide greater access to the standards that would be
incorporated by reference, “or, at a minimum, clarify that
FERC will not attempt to assess civil penalties . . . for violations
of standards that have merely been incorporated by reference
into regulations.”209 These suggestions were grounded in con‐
cerns that incorporation by reference disadvantaged those par‐
ties unable to participate in the standard‐development process
and forced regulated entities to comply with “non‐public stan‐
dards” that could only be obtained for a fee.210 FERC, however,
has consistently rejected these arguments. In one proceeding,
FERC called a commenter’s argument—that a standard was not
“reasonably available” because one had to pay a “significant
fee” to buy a copy—“inappropriate hyperbole.”211 The agency,
being familiar with the commenter, presumably knew that the
cost of the standard was significantly lower than the hourly
rate the commenter was paying counsel to file its comments.212
That claim of unreasonable expense was therefore not credible
under the circumstances.
Congress has increasingly shown interest in legislation that
would, at least in some limited contexts, abrogate copyright

208. See Standards for Business Practices of Interstate Natural Gas Pipelines, 68
Fed. Reg. 13,813, 13,1816–18 (Mar. 21, 2003) (to be codified at 18 C.F.R. § 284);
Standards for Business Practices of Interstate Natural Gas Pipelines, 64 Fed. Reg.
17,276, 17,277 (Apr. 9, 1999) (to be codified at 18 C.F.R. § 284); Standards for Busi‐
ness Practices of Interstate Natural Gas Pipelines, 61 Fed. Reg. 55,208, 55,212–13
(Oct. 25, 1996) (to be codified at 18 C.F.R. § 284); Standards for Business Practices
and Communication Protocols for Public Utilities, Final Rule, 74 Fed. Reg. 63,288,
63,302–04 (Dec. 3, 2009) (to be codified at 18 C.F.R. § 38); Standards for Business
Practices and Communication Protocols for Public Utilities, 70 Fed. Reg. 28,222,
28,223–24 (proposed May 17, 2005) (to be codified at 18 C.F.R. §§ 35, 37, 38).
209. Standards for Business Practices and Communication Protocols for Public
Utilities, 74 Fed. Reg. 63,288, 63,302 (Dec. 3, 2009) (to be codified at 18 C.F.R. § 38).
210. Id.
211. Standards for Business Practices of Interstate Natural Gas Pipelines, 68 Fed.
Reg. 13,813, 13,817 (Mar. 21, 2003) (to be codified at 18 C.F.R. § 284).
212. Compare id. (stating that the agency charges $25 for its booklets which in‐
clude all business practice standards), with Dominion Resources Inc., 102 Annual
Report (Form 10‐K) (Mar. 23, 2003) (listing earnings in 2002 as $1,365,000,000).

No. 1]

Incorporation by Reference

175

protection for incorporated standards.213 In January 2012, Con‐
gress enacted a statute providing that, as of January 2013, the
Pipeline and Hazardous Materials Safety Administration
(PHMSA) “may not issue guidance or a regulation pursuant to
this chapter that incorporates by reference any documents or
portions thereof unless the documents or portions thereof are
made available to the public, free of charge, on an Internet Web
site.”214 The change was purportedly precipitated by a staffer’s
call to one of the Standard‐Development Organizations (SDOs)
that produces pipeline safety standards. The staffer called the
SDO’s sales office, rather than its government affairs office, and
was told he would have to pay over $1000 to get a copy of the
standard. SDOs ordinarily provide free copies to legislators,
but by the time the error was discovered by the SDO’s gov‐
ernment affairs employees, the damage had been done. In July
2012, PHMSA took comment and held a public workshop to
solicit suggestions on how it could complete an ongoing rule‐
making to update its pipeline safety regulations while still
complying with Congress’s directive.215 As of the fall of 2012,
the agency has yet to find a solution to its conundrum.
Other legislative proposals addressing incorporation by ref‐
erence have not been enacted. One such proposed bill would
have directed the Department of Energy to use specified volun‐
tary consensus standards, provided they met certain regulatory
requirements.216 If the standards did not meet the stated re‐
quirements, however, the Secretary would have been author‐
ized to take the standards, modify them as necessary, and
promulgate them as regulations of the Department of En‐
213. For example, one recent piece of legislation would require PHMSA to
“maintain a copy or, at a minimum, a detailed summary of any industry‐
developed or professional organization pipeline safety standards that have been
incorporated by reference into regulations, to the extent consistent with fair use.”
Pipeline Transportation Safety Improvement Act of 2011, S. 275, 112th Cong. § 8
(as passed by Senate, Oct. 17, 2011). This requirement would be “met if the infor‐
mation required to be made public is made available on the [PHMSA]’s public
Web site.” Id. § 60138(b).
214. Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L.
No. 112–90 § 24, 125 Stat. 1904, 1919 (2012).
215. See Pipeline Safety: Notice of Public Workshop To Discuss Implementing In‐
corporation by Reference Requirements of Section 24 of the Pipeline Safety, Regula‐
tory Certainty, and Job Creation Act of 2011, 77 Fed. Reg. 37,472 (June 21, 2012).
216. See Energy Savings and Industrial Competitiveness Act of 2011, S. 1000,
112th Cong. § 101(a) (2011).

176

Harvard Journal of Law & Public Policy

[Vol. 36

ergy.217 The bill specifically instructed the Department of En‐
ergy to “observe and protect the intellectual property rights of
nationally recognized code and standards developers,”218 with‐
out specifying precisely how the Secretary would achieve that
goal. A few interviewees suggested that these developments,
although largely unsuccessful to date, indicate growing con‐
gressional discontent with restrictions on the free availability of
incorporated standards. This implies that there is an emerging
public policy debate regarding the defensibility of copyright
and other limitations on access to incorporated standards, par‐
ticularly when such standards protect public safety. PHMSA’s
predicament demonstrates a pressing need for agencies to take
affirmative steps to address the issue.
D.

Tools to Expand Availability

Although some have urged it, an abrupt, radical change to
existing copyright protection for incorporated standards would
jeopardize the public‐private partnership in standards219 and,
therefore, would be ill advised. Many standard‐development
organizations rely on proceeds from the sale of their publica‐
tions to fund their standard‐development activities. For exam‐
ple, in its 2010 Annual Report, ASTM reported total operating
expenses of $41,969,030.220 ASTM reported that $35,350,779 of
its total operating revenues of $53,969,725 (approximately 62%)
was derived from publication sales.221 Of course, this figure in‐
cludes funds derived from all publication sales, and not just the
sale of standards that have been incorporated by reference.
Moreover, ASTM explained that only a small percentage of its
standards are truly profitable, and many lose money or simply
break even. Nonetheless, it is striking that member fees pro‐
vided only $2,090,259 (approximately 3.7%) of total operating
revenues.222 ASTM is able to keep the barriers to participation

217. Id.
218. Id.
219. See supra Part II.A.
220. ASTM INT’L, 2010 ANNUAL REPORT: INNOVATION AND STANDARDIZATION 2,
23 (2010), available at http://www.nxtbook.com/nxtbooks/astm/annualreport2010/
index.php#/0.
221. Id.
222. Id.

No. 1]

Incorporation by Reference

177

low by using revenue from publication sales as the primary
source of funding for its activities. The same is true of many
other standard developers.
Technological innovations that enable controllable electronic
access to copyrighted standards may provide an opportunity to
improve access for regulatory purposes without destroying the
value of copyrights. Indeed, in recent years, several standard‐
development organizations have expanded public access to stan‐
dards via the web using such technological devices. For example:


In the wake of the Deepwater Horizon oil spill,
the American Petroleum Institute (API) pro‐
vided read‐only access to “almost one‐third of
all API standards, including all standards that
are safety‐related or have been incorporated
into federal regulation” on the organization’s
website.223



NAESB has obtained software that enables it to
make standards available in read‐only form on
its website to nonmembers at no charge for
three business days for evaluation and com‐
menting purposes.224



The National Fire Protection Association
(NFPA) provides access to some of its codes on
its website and has recently expanded read‐
only access to current and previous versions of
its codes.225

These access options are typically read‐only, meaning that the
documents can be viewed electronically, but can neither be
downloaded nor printed. This limitation allows interested par‐

223. Press Release, American Petroleum Institute, API provides expanded online
access to its safety standards (Oct. 28, 2010), available at http://www.api.org/
Newsroom/api‐expanded‐stds.cfm.
224. Press Release, NAESB, Procedures for Non‐Members to Evaluate Work
Products Before Purchasing (May 6, 2009), available at http://www.naesb.org/
misc/NAESB_Nonmember_Evaluation_LockLizard.pdf.
225. News Release, National Fire Protection Association, NFPA Launches New
Web Pages to Streamline Access to Technical Document Information (Nov. 16,
2009), available at http://www.nfpa.org/newsReleaseDetails.asp?categoryid=488&
itemId=45446&rss=NFPAnewsreleases.

178

Harvard Journal of Law & Public Policy

[Vol. 36

ties to view the documents, while preserving incentives for
regular users to purchase their own copy.
Some agencies have improved access by purchasing a license
to distribute electronic copies of a standard they are consider‐
ing using or have decided to incorporate by reference. Such
agencies negotiate with the copyright holder for the right to
distribute copies of the standard at an agreed cost, either dur‐
ing rulemaking, following promulgation, or both. One example
of a situation in which this approach worked involves stan‐
dards governing best practices for first responders faced with
biological threats. ASTM negotiated a deal with the Depart‐
ment of Homeland Security (DHS) that allowed DHS, for a flat
fee, to broadly distribute electronic copies of the standard,
which ordinarily costs $36 per copy.226 The standard can be
downloaded for free on ASTM’s website.227 While this ap‐
proach can work, several interviewees suggested that it might
not be the best option. Not only does it have the potential to
become prohibitively expensive, it also risks creating unhealthy
financial dependence between agencies and standard‐
development organizations. If widespread, the practice could
undermine the strength and independence of our nation’s ro‐
bust standard‐development community.
For these reasons, several agencies suggested that a better al‐
ternative is for agencies to work with standard‐development or‐
226. See, e.g., Barbara Jones, Laurie Locascio, Kenneth Cole, & Scott Coates,
Meeting the Unknown: Standards for Detecting Biological Weapons Agents, DEF.
STANDARDIZATION PROGRAM J., July—Dec. 2007, at 18, 20–21, available at
http://www.dsp.dla.mil/app_uil/content/newsletters/journal/DSPJ‐07‐07.pdf (last
visited Nov. 22, 2011) (“DHS . . . has obtained an unlimited license from ASTM to
allow first responders and others to download the standard free of charge.”).
ASTM E2458‐10, Standard Practices for Bulk Sample Collection and Swab Sample Col‐
lection of Visible Powders Suspected of Being Biothreat Agents from Nonporous Surfaces,
ASTM, can be downloaded for free from http://www.astm.org/DHS/E2458.pdf.
ASTM E2601‐08, Standard Practice for Radiological Emergency Response is also avail‐
able for free at the same web address.
227. To download a copy, a user is required to register with ASTM. Registration
is free, but the user must provide a physical mailing address, e‐mail address, and
phone number before the download becomes available. I verified that the process
works and takes just a few minutes. NIST is also piloting a program to measure
and improve the first responder community’s need for certain documentary stan‐
dards. See Press Release, NIST, It’s Your Standard Pilot Project: NIST to Offer
Documentary Standards to First Responders (Aug. 2, 2011), available at
http://www.nist.gov/director/first‐responders‐documentary‐standards.cfm.

No. 1]

Incorporation by Reference

179

ganizations to facilitate access to copyrighted, incorporated
standards on a case‐by‐case basis without purchasing a license.
While some standard‐development organizations are more
flexible than others, many have demonstrated a willingness to
work with agencies to increase access using emerging technolo‐
gies, thereby striking a balance between availability and copy‐
right. In some cases, a standard‐development organization can
provide read‐only copies of a standard in the docket or on its
own website during the rulemaking process. Agencies may be
able to secure similar accommodations following promulgation
of a regulation incorporating the standard—particularly where
the standard relates to public safety—and the success of the
agency’s regulatory purpose depends upon wide dissemination
of the standard. In working with standard‐development organi‐
zations on access issues, however, agencies should be aware that
read‐only access documents may not be 508 compliant.228 One
agency reported that, when faced with this issue, the standard
developer offered to make accommodations upon request.229
One organization that depends on copyright for funding, but
has shown a particular willingness to accommodate access
needs, is ASTM. ASTM has worked with agencies and regu‐
lated parties to facilitate access to its standards, both during
rulemaking and following promulgation of a regulation incor‐
porating an ASTM standard. ASTM and CPSC’s coordinated
efforts with respect to the mandatory toy standard, ASTM
F963, required by the Consumer Product Safety Improvement
Act of 2008 (CPSIA), provide a good example.230 During the
initial rulemaking, ASTM provided a read‐only copy of the
standard on its website, and CPSC directed interested parties

228. Section 508 of the Rehabilitation Act of 1973, as amended, requires federal
agencies to make electronic and information technology accessible to those with
disabilities. See 29 U.S.C. § 794 (2006).
229. In most cases a standard developer provides read‐only access on its own
website, where it can keep track of downloads, and the agency simply provides a
clear instruction regarding the Internet location of the standard. Some agencies
expressed discomfort with this arrangement, however, and have insisted upon
hosting the read‐only document in a docket or website controlled by the agency.
230. Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110‐314, 122
Stat. 3016 (2008). The CPSC provides a very useful guide to the CPSIA, including a
variety of supplemental information and agency documents in a central location on its
website. See Consumer Product Safety Improvement Act (CPSIA) of 2008, CONSUMER
PROD. SAFETY COMM’N, http://www.cpsc.gov/about/cpsia/cpsia.html.

180

Harvard Journal of Law & Public Policy

[Vol. 36

to the appropriate web address in its Federal Register notice.231
One concern in the rulemaking was that small, independent
toy manufacturers might not be able to afford the standard
once promulgated. ASTM worked with the Handmade Toy Al‐
liance to negotiate a license that enabled the Handmade Toy
Alliance to offer the standard to its more than 650 members for
less than $10.
When an agency is considering incorporating copyrighted
material by reference into a regulation, it should work with the
copyright holder to ensure that the material will be reasonably
available to regulated and other interested parties both during
rulemaking and following promulgation. Agencies should
avoid solutions that require them to obtain a license to achieve
this goal. Instead, agencies should work with copyright holders
and use available technological solutions to strike an appropri‐
ate balance between the public interest in access and the copy‐
right holder’s need to fund its standard‐development activities.
E.

Collaborating to Ensure Reasonable Availability

Whether copyrighted material is reasonably available to reg‐
ulated and other interested parties may be relevant in two dis‐
tinct contexts. First, an agency may consider whether such ma‐
terial is reasonably available when deciding whether to “use”
the material. Restrictions on availability may be one of the
many factors an agency considers when evaluating whether
using a particular standard is “impractical” within the meaning
of OMB Circular A‐119. For example, restrictions on access
may contribute to a determination that using a particular stan‐
dard would be “ineffectual, inefficient, or inconsistent with
agency mission” or “impose more burdens, or . . . be less use‐
ful, than . . . another standard.”232 Second, an agency may con‐
sider whether a standard is reasonably available in evaluating
whether and to what extent it should work with a copyright
holder to broaden access. This task may be appropriate during
the rulemaking stage, and it may also come into play once an
agency has decided to promulgate a regulation incorporating
the standard by reference.
231. Notice of Consultation Pursuant to Section 106 of the CPSIA, Request for
Comments and Information, 74 Fed. Reg. 35,848, 35,850 (July 21, 2009).
232. CIRCULAR A‐119, supra note 5, ¶ 6(a)(2).

No. 1]

Incorporation by Reference

181

In deciding whether to incorporate a particular copyrighted
material by reference, and in working with a copyright holder
to ensure the material is reasonably available, an agency
should consider the following: (1) the stage of the regulatory
proceedings, because greater access may be required during
rulemaking than following promulgation; (2) whether the ma‐
terial is related to public safety or otherwise requires broad ac‐
cessibility to accomplish the regulatory purpose of incorpora‐
tion; (3) the cost to obtain a copy of the material, including the
cumulative cost to obtain a standard or other material contain‐
ing secondary references; (4) the identity of regulated parties
that must have access to the incorporated material; and (5)
regulatory reasons to require regulated parties to independ‐
ently obtain access to incorporated material.
The stage of the regulatory proceedings. During the rulemaking
process, broad access to copyrighted materials may be of par‐
ticular importance to enable interested parties to provide
meaningful comments on the regulatory proposal. Once a regu‐
lation that incorporates by reference has been promulgated, the
access needs of regulated parties may take on greater impor‐
tance. Agencies should thus evaluate “reasonable availability”
in light of the stage of the regulatory proceeding.
Whether the material is related to public safety or otherwise re‐
quires broad accessibility to accomplish the regulatory purposes of
incorporation. Many standards incorporated by reference consist
of technical specifications that are of interest only to a small
number of regulated entities. Other standards incorporated by
reference may have important public safety implications or
otherwise require broader accessibility to vindicate an agency’s
regulatory purpose. For example, some interviewees expressed
the view that safety standards, particularly those that first re‐
sponders may need, should be readily available. An agency
should carefully consider the type of standard and its relation‐
ship to the agency’s regulatory mission in determining whether
it is “reasonably available.”
The cost to obtain a copy of the copyrighted material. There is
great variety in the cost of copyrighted materials incorporated
by reference. For example, ASTM’s toy standard costs $71,233
233. ASTM F963‐11 STANDARD CONSUMER SAFETY SPECIFICATION FOR TOY
SAFETY, ASTM INT’L, available at http://www.astm.org/Standards/F963.htm (last

182

Harvard Journal of Law & Public Policy

[Vol. 36

while the International Organization for Standardization
(ISO)’s toy standard costs approximately $210 (CHF 196,00)234
and the equivalent European Standard costs approximately
$379 (£236).235 Some full codes may cost hundreds of dollars,
while other individual standards cost much less. And if a stan‐
dard contains secondary references, the purchase of two or
more standards may be required. In such cases, agencies
should take the cumulative cost into consideration. Agencies
should also consider cost in conjunction with other facts that
may affect whether a particular dollar amount is “reasonable.”
Cost to an individual or small business may be effectively
higher than the same cost would be to a large corporation. The
relative cost of a standard may also depend on the total cost of
complying with the regulation. For example, if compliance
costs $100,000, $100 to buy the standard may seem more rea‐
sonable. Moreover, regulated entities, and even members of the
public, may reduce the costs of accessing standards by becom‐
ing members of the relevant standard‐development organiza‐
tion. The cost of such membership can be reasonable and fre‐
quently includes free access to standards. In some industries,
membership may even be a business necessity.236
The identity of regulated parties that must have access to the incor‐
porated material. As many agencies acknowledged, paying for
copyrighted materials incorporated by reference may be more
difficult for individuals or small entities, while the burden may
not be so heavy for large corporations. During rulemaking, this
may mean that manufacturers are more likely to have access to
a standard than are consumers or public interest organizations.
Some agencies noted that regulated parties might already have
copies of the standard by virtue of their membership in stan‐

visited Nov. 22, 2012). For $85.20, one can purchase a redline version of the stan‐
dard showing changes from the previous version. Id.
234. ISO 8124‐1:2012, SAFETY OF TOYS—PART 1: SAFETY ASPECTS RELATED TO
MECHANICAL AND PHYSICAL PROPERTIES, INT’L. ORG. FOR STANDARDIZATION,
http://www.iso.org/iso/home/store/catalogue_ics/catalogue_detail_ics.htm?csnum
ber=62327 (last visited Nov. 22, 2012).
235. BS EN 71‐1:2011, SAFETY OF TOYS: MECHANICAL AND PHYSICAL PROPERTIES,
BRITISH STANDARDS INST., http://shop.bsigroup.com/en/ProductDetail/?pid=
000000000030217312 (last visited Nov. 22, 2012).
236. See, e.g., Membership/Member Types & Benefits, ASTM INT’L,
http://www.astm.org/MEMBERSHIP/MemTypes.htm (last visited Nov. 22, 2012).

No. 1]

Incorporation by Reference

183

dard‐development organizations or practice of complying with
industry standards. On the other hand, if an agency incorpo‐
rates a standard from another industry—for example, the FAA
has incorporated a ballistic standard in its requirement that
planes include a bomb containment area—regulated parties are
less likely to have access to it.
Regulatory reasons to require regulated parties to independently
obtain access to incorporated material. Some agencies may have
good reasons for requiring regulated parties to independently
obtain standards. For example, FERC strongly encourages reg‐
ulated parties to become members of NAESB and participate in
its standard‐development activities. Members get access to
standards for free. Membership also benefits the public interest
by encouraging broad‐based participation in the development
of standards. Another example is FAA, which considers obtain‐
ing manufacturer manuals a reasonable business expense for
owners and operators of aviation products, who are under a
general duty to keep aircraft in a safe and airworthy condition
regardless of whether an airworthiness directive requiring a
specific inspection or repair has been issued.
Agencies should consider these and other relevant factors in
determining how best to ensure that copyrighted material incor‐
porated by reference is reasonably available to members of the
public and regulated parties. Finally, it bears noting that most
standards incorporated by reference into federal regulations are
highly technical. Even if a copy of such a standard is freely
available, it may not be meaningfully accessible to members of
the public who do not possess the requisite technical, scientific,
or other specialized expertise. To ensure that such standards are
reasonably available to all, particularly during the rulemaking
process, agencies should include in a rule’s preamble an expla‐
nation of the copyrighted material and how its incorporation by
reference will further the agency’s regulatory purpose.
III.

THE CHALLENGE OF UPDATING
INCORPORATIONS BY REFERENCE

Another challenge of incorporation by reference is updating
regulations to reflect revised versions of incorporated materi‐
als. Agencies are required to specifically identify the version of

184

Harvard Journal of Law & Public Policy

[Vol. 36

an incorporated material. When a more recent version of that
material becomes available, the agency must conduct a rule‐
making to update its regulation to reflect the change.237 Rule‐
making demands significant resources, and it is particularly
burdensome when the agency is required to use rulemaking
procedures beyond those specified in Section 553 of Title 5 of
the U.S. Code (that is, hybrid rulemaking requirements).
My research revealed several techniques agencies use to ad‐
dress the challenge of updating incorporating regulations. Un‐
fortunately, in some instances, updating proves to be an intrac‐
table challenge that cannot be surmounted using available
regulatory techniques. A statutory solution to address these
situations may thus be appropriate.
A.

Legal Prohibitions on Dynamic Incorporations

Although dynamic incorporation is an obvious way to avoid
the updating conundrum, it is prohibited. A dynamic incorpo‐
ration is not keyed to a particular version of the referenced ma‐
terial, but rather incorporates whatever happens to be the most
recent version of the material. Dynamic incorporation is attrac‐
tive because the agency need not take any action to update the
regulation when the incorporated material is revised; the most
recent version is always and necessarily the one incorporated
by reference.
Several legal provisions prohibit dynamic incorporations,
and for good reason.238 OFR’s regulations239 and Document
Drafting Handbook (DDH)240 require agencies to identify the
particular version of any material incorporated by reference.
237. See, e.g., Combustible Dust, 74 Fed. Reg. 54,333, 54,339 (Oct. 21, 2009) (to be
codified at 29 C.F.R. pt. 1910) (“In the Agency’s experience, consensus standards
incorporated by reference into OSHA rules quickly become out of date, making it
difficult for employers to comply when the out‐of‐date consensus standards be‐
come difficult to obtain.”).
238. See, e.g., id. (“OSHA cannot legally update NFPA or other consensus stan‐
dards used in its rules by referring to the ‘current’ or ‘most recent’ edition of the
consensus standards.”).
239. See, e.g., 1 C.F.R. § 51.1(f) (2012) (“Incorporation by reference of a publica‐
tion is limited to the edition of the publication that is approved.”); CIRCULAR A‐
119, supra note 5, ¶ 6(j).
240. See NAT’L ARCHIVES & RECORDS ADMIN., FEDERAL REGISTER DOCUMENT
DRAFTING HANDBOOK, CH. 6 (Jan. 2011) [hereinafter DDH], available at
http://www.archives.gov/federal‐register/write/handbook/chapter‐6.pdf.

No. 1]

Incorporation by Reference

185

Indeed, OFR regulations expressly state that “[f]uture amend‐
ments or revisions of [an incorporated] publication are not in‐
cluded” in the reference.241 Circular A‐119 mirrors this basic
publication requirement, providing that “[i]n regulations, the
reference [to a voluntary consensus standard] must include the
date of issuance,” thus keying the incorporation to a particular
version of the standard. This requirement of static incorpora‐
tion is consistent with the purpose of the publication require‐
ment because it ensures clear notice of regulatory require‐
ments. Relatedly, it prevents confusion regarding the
requirements of the law at any given point in time, both for the
agency and for regulated parties. Perhaps most crucially, it
preserves an agency’s regulatory authority and responsibility.
That the first version of a standard serves the public interest
and warrants incorporation does not necessarily mean that
subsequent incarnations of that standard will do the same. It is
critical that agencies exercise independent judgment over each
version to make certain that, as revised, the standard continues
to carry out the public interest.
Dynamic incorporations may also offend more fundamental
legal principles, including nondelegation principles and notice‐
and‐comment requirements.242 As to the first point, “[d]ynamic
incorporation at least poses an issue under the nondelegation
doctrine,”243 whereas “static incorporation will always be consti‐
tutional.”244 Whether a dynamic incorporation constitutes an
unconstitutional delegation may depend on the source of the
material referenced. Dynamic incorporation of a federal statute
would likely pose less constitutional risk because a delegation
to Congress would be no delegation at all.245 In contrast, dy‐
namic incorporation to a privately created standard would

241. 1 C.F.R. § 51.1(f) (2012).
242. OSHA, Standards Improvement Project—Phase III, 76 Fed. Reg. 33,590,
33,593 (2011) [hereinafter SIP] (to be codified at scattered parts of 29 C.F.R.) (“The
Agency notes that it cannot incorporate by reference the latest editions of consen‐
sus standards without undertaking new rulemaking because such action would
delegate the government’s regulatory authority to consensus standards develop‐
ing organizations, as well as deprive the public of the notice‐and‐comment period
required by law.”).
243. Jonathan R. Siegel, The Use of Legislative History in a System of Separated Pow‐
ers, 53 VAND. L. REV. 1457, 1484–85 (2000).
244. Id. at 1485.
245. See, e.g., id.; see also Franklin v. United States, 216 U.S. 559, 569 (1910).

186

Harvard Journal of Law & Public Policy

[Vol. 36

threaten constitutional norms by effectively delegating the
agency’s statutory authority to a standard‐development or‐
ganization.246 As to the second point, dynamic incorporation by
a federal agency may conflict with the APA’s notice‐and‐
comment requirements.247 By permitting automatic modifica‐
tions to administrative regulations without the agency con‐
ducting a rulemaking, dynamic incorporation robs the public
of the opportunity to examine and comment on changes to the
incorporated material.
B.

Technical Amendments to Update
Access Information

A comparatively minor problem with outdated incorpora‐
tions by reference occurs when the public access information
contained in the regulation becomes outdated, incorrect, or in‐
complete. As explained above, rules must include information
about where the public can find a copy of any material incor‐
porated by reference. Over time, this information may become
outdated as, for example, publishers or resellers move or stop
providing a particular document or version thereof. Moreover,
in recent years, OFR has required agencies to include more
public access information when incorporating material by ref‐
erence.248 Thus, even if information contained in a regulation
remains current, it may be incomplete according to current
OFR incorporation by reference requirements.
This problem becomes worse if ignored, for two reasons.
First, some agencies have found that when they make substan‐
tive changes to one of their parts of the CFR, OFR may insist
that they take the opportunity to update old access informa‐
tion. This can be particularly difficult if, for example, the incor‐
porated material is a standard that is no longer being published
or sold by resellers. Particularly if the OFR’s request catches the
agency by surprise, it can delay publication of a new rule. Sec‐
246. See Siegel, supra note 243, at 1488; see also id. at 1489 (“[A] dynamic incorpo‐
ration constitutes a delegation, which must be evaluated under the applicable
delegation doctrine, but a static incorporation is not a delegation at all and cannot,
therefore, be invalid under any delegation doctrine.”).
247. See SIP, supra note 242, at 33,593.
248. See DDH, supra note 240, ch. 4 (entitled “How do I correct my document?”),
available at http://www.archives.gov/federal‐register/write/handbook/chapter‐4.pdf.

No. 1]

Incorporation by Reference

187

ond, and related, OFR has interpreted Section 552 of Title 5 of
the U.S. Code and its own regulations as granting it authority
to revoke approval of an incorporation by reference when the
material at issue is no longer “reasonably available to and us‐
able by the class of persons affected.”249 Although OFR has yet
to exercise this authority, it may do so if an incorporation
proves to be incurably outdated.
This problem is easily solved with a technical amendment to
the affected regulation. Technical amendments are changes to a
regulation that can be made without notice‐and‐comment. For
example, a technical amendment may correct nonsubstantive
errors in previously published regulations. Updating access in‐
formation for a previously published incorporation by reference
fits squarely within the purposes of a technical amendment.
Chapter four of the DDH provides detailed guidance for agen‐
cies that need to so amend a regulation.250 Regulated and other
interested parties must be able to locate incorporated material,
and agencies should periodically review regulations and make
technical amendments as necessary to ensure all incorporations
by reference include complete and accurate access information.
C.

Agency Practices That Can Facilitate Updating

Agencies that regularly incorporate private standards should
participate in standard‐setting processes and adopt comple‐
mentary internal procedures to ensure good communication of
emerging revisions to those within the agency charged with
making policy decisions and writing rules. Participating in
standard development ensures that agency personnel are
aware of revisions to standards as they are being considered,
thereby providing a more efficient and reliable way for the
agency to understand and evaluate new versions. When stan‐
dard‐setting organizations provide updates and schedules to
members of the relevant committee, they will necessarily be
updating the agency. And the communication runs both
ways—agency participants can inform standard developers of
the agency’s concerns and priorities. This in turn may reduce
the likelihood that a revised standard will be inconsistent with
the agency’s regulatory goals. Indeed, some agencies reported
249. 1 C.F.R. § 51.7(a)(4) (2012).
250. See DDH, supra note 240, ch. 4.

188

Harvard Journal of Law & Public Policy

[Vol. 36

that they have, on occasion, requested that a standard‐
development organization examine a new problem and update
an incorporated standard to address it. Thus, participation may
not only help with updating, but may also serve the broader
regulatory needs of the agency.
Several agencies have successfully used this approach to re‐
duce the burden of updating. FERC is a good example of an
agency that has formed a mutually beneficial partnership with
a standard‐development organization, NAESB. NAESB often
creates or updates standards in response to industry needs, but
it has also updated its standards in response to FERC’s regula‐
tory activities and policy initiatives.251 FERC employees par‐
ticipate in the NAESB’s process, and when they are unable to
attend a meeting, NAESB updates the agency on what was
missed. The result is that FERC is generally aware of the direc‐
tion NAESB is headed with particular standards. And agency
personnel can communicate the agency’s needs and views to
NAESB during the standard‐development process, thereby
shaping the resulting standard. Other agencies, including
CPSC and NRC, also participate in standard development and
have crafted internal policies and procedures to make the most
of that participation.252
Agencies can decrease the costs and increase the usefulness
of participation by taking advantage of relevant guidance and
resources available within the federal government.253 Under the
251. See, e.g., Standards for Business Practices and Communication Protocols for
Public Utilities, 74 Fed. Reg. 63,288, 63,288–89 (Dec. 3, 2009) (to be codified at 18
C.F.R. § 38) (revising regulations to incorporate by reference new versions of vari‐
ous NAESB standards, and explaining that the effort “include[s] standards adopt‐
ed by NAESB in response to [FERC] Order Nos. 890, 890‐A, and 890‐B.”).
252. A related practice is for an agency to publish a notice in the Federal Regis‐
ter when a standard developer is accepting comments on revisions to an incorpo‐
rated standard. See National Institute of Standards and Technology, National Fire
Codes: Request for Comments on NFPA Technical Committee Reports, 76 Fed.
Reg. 22,381 (Apr. 21, 2011) (“The National Institute of Standards and Technology
(NIST) is publishing this notice on behalf of the National Fire Protection Associa‐
tion (NFPA) to announce the availability of and request comments on the techni‐
cal reports that will be presented at NFPA’s 2012 Annual Revision Cycle.”). This
can raise public awareness of the opportunity to participate in voluntary consen‐
sus standard‐development activities and promote the agency’s interest in under‐
standing revisions as they are considered.
253. Professor Hamilton’s 1978 report to the Conference is a good starting point,
as it includes detailed analysis of how agencies can best engage with voluntary

No. 1]

Incorporation by Reference

189

NTTAA, the National Institute of Standards and Technology
(NIST), an agency of the Department of Commerce, coordinates
the federal government’s interaction with the private standard‐
development community.254 NIST implements its duties under
the NTTAA by working closely with standard‐development
organizations and coordinating with agencies through the In‐
teragency Committee on Standards Policy (ICSP).255 Through
the ICSP, NIST formulates uniform federal policies and shares
information regarding agency use of voluntary consensus
standards. Each agency participates through its Standards Ex‐
ecutive, typically a high‐level official who represents the agen‐
cy at quarterly ICSP meetings and implements federal stan‐
dards policies within his own agency.256 NIST also provides a
variety of resources to agencies that engage in private stan‐
dard‐setting processes or use voluntary consensus standards in
regulation.257 It offers training and guidance to agencies on
standards issues and also maintains a website, Standards.gov,
that provides background materials and information about
federal standards policy, as well as a complete database of all

standard‐development efforts and use resulting voluntary standards to make
health and safety regulation better. See generally Hamilton, supra note 21.
254. See 15 U.S.C. § 272(b)(3) (2006) (providing that a function of NIST is “to co‐
ordinate the use by Federal agencies of private sector standards, emphasizing
where possible the use of standards developed by private, consensus organiza‐
tions”); see also U.S. DEP’T OF COMMERCE, NAT’L INST. OF STANDARDS OF TECH.,
NISTIR 5967, THE NATIONAL TECHNOLOGY TRANSFER AND ADVANCEMENT ACT—
PLAN FOR IMPLEMENTATION 1 (1997) [hereinafter NIST NTTAA IMPLEMENTATION
PLAN], available at http://gsi.nist.gov/global/docs/pubs/NISTIR_5967.pdf (“The
[NTTAA] directs NIST to coordinate with other federal government agencies to
achieve greater reliance on voluntary standards and conformity assessment bod‐
ies with lessened dependence on in‐house regulations.”).
255. NIST NTTAA IMPLEMENTATION PLAN, supra note 254, at 5–15. As required
by the NTTAA, NIST has issued policy guidance on federal agency conformity
assessment activities. See Guidance on Federal Conformity Assessment Activities,
65 Fed. Reg. 48,894 (Aug. 10, 2000) (to be codified at 15 C.F.R. § 297).
256. NIST provides a directory of Standards Executives that is available online.
See Standards Executives, STANDARDS.GOV, http://standards.gov/standards_gov/
standardsExecutives.cfm (last visited Nov. 22, 2012).
257. Other tools are available to help agencies understand the U.S. standards
system. For example, ANSI offers a free, online educational resource for confor‐
mity assessment education. See, e.g., U.S. Standards System—Today and Tomorrow,
WWW.STANDARDSLEARN.ORG, http://www.standardslearn.org/coursedetails.aspx?
key=2 (last visited Nov. 22, 2012).

190

Harvard Journal of Law & Public Policy

[Vol. 36

standards incorporated by reference into the CFR.258 In Decem‐
ber 2010, NIST issued a Request for Information seeking input
from agencies on standards issues.259 The Subcommittee on
Standards recently released an analysis of federal agency par‐
ticipation in standard‐development activities based on the
comments it received.260 This should provide useful guidance
to interested agencies.
D.

Confining Standards to Appendices and Guidance

Agencies may be tempted to avoid the updating challenge by
confining references to extrinsic materials to nonbinding ap‐
pendices and guidance documents. Taking this approach, an
agency could promulgate a general standard in a regulation,
and then use a nonbinding supplementary document to direct
regulated parties to privately created standards that provide
alternatives for compliance. Such documents are easier to mod‐
ify and update than regulations because compliance with the
APA’s notice‐and‐comment requirements is not required. Thus,
by confining standards to guidance, agencies could sidestep
the updating issue. When a standard incorporated by reference
into an appendix or guidance document is revised, the agency
could easily update its document to reflect the change.
Despite the apparent advantages of this approach, agencies
should not use it to address the challenges of updating incorpo‐
rations by reference. First, the legal implication of confining in‐
corporations by reference to guidance, policy statements, and

258. See Standards Incorporated by Reference (SIBR) Database Home Page, NAT’L
INST. OF STANDARDS & TECH., http://standards.gov/sibr/query/index.cfm (last vis‐
ited Nov. 22, 2012). OFR maintains a similar database of materials approved for
incorporation by reference, organized according to where the material is refer‐
enced in the CFR, but reports that the listing is not necessarily complete. Electronic
Code of Federal Regulations (e‐CFR), Incorporation by Reference, U.S. GOV’T PRINTING
OFFICE, http://ecfr.gpoaccess.gov/cgi/t/text/text‐idx?c=ecfr&tpl=ibr.tpl (last visited
Nov. 22, 2012).
259. See Effectiveness of Federal Agency Participation in Standardization in Select
Technology Sectors for National Science and Technology Councilʹs Sub‐Committee
on Standardization, Request for Information, 75 Fed. Reg. 76,397 (Dec. 8, 2010).
260. SUBCOMMITTEE ON STANDARDS, NAT’L SCI. & TECH. COUNCIL, EXEC. OFFICE
OF THE PRESIDENT, FEDERAL ENGAGEMENT IN STANDARDS ACTIVITIES TO ADDRESS
NATIONAL PRIORITIES: BACKGROUND AND PROPOSED RECOMMENDATIONS (Oct. 10,
2011), available at http://www.whitehouse.gov/sites/default/files/microsites/ostp/
federal_engagement_in_standards_activities_october12‐final.pdf.

No. 1]

Incorporation by Reference

191

similar documents is that the referenced material is not manda‐
tory. If a regulated party does not adhere to the referenced mate‐
rial, the agency may have difficulty imposing legal sanctions
unless the party has also violated the underlying regulation.261
Second, the practice of using guidance to fill out regulatory de‐
tails not included in the codified regulation is controversial be‐
cause it tends to undermine fundamental principles of adminis‐
trative law and good governance. Often, generally applicable
substantive standards confined to “non‐binding” agency docu‐
ments such as guidance become binding de facto.262 The Confer‐
ence has historically recommended against agencies “issu[ing]
statements of general applicability that are intended to impose
binding substantive standards or obligations upon affected per‐
sons without using legislative rulemaking procedures (normally
including notice‐and‐comment).”263 Although the process may
be burdensome, notice‐and‐comment ensures that affected par‐
ties and members of the public have the opportunity to partici‐
pate in the adoption of regulatory standards. This principle of
public participation and transparency should be observed with
respect to incorporation by reference.
In sum, agencies should not address updating challenges by
confining incorporations by reference to nonbinding appendi‐
ces or guidance documents. If an agency intends to make com‐
pliance with an extrinsic standard mandatory, it should incor‐
porate that standard by reference in a regulation.

261. See 5 U.S.C. § 552(a) (2006); see also, e.g., Desmond v. Mukasey, 530 F.3d 944,
957 (D.C. Cir. 2008) (noting that “guidance ‘does not carry the force of law and is
not entitled to any special deference,’” though it may be “relevant” to a court’s
interpretation of regulatory requirements (quoting Pack v. Kmart Corp., 166 F.3d
1300, 1305 n.5 (10th Cir. 1999))).
262. See, e.g., Chamber of Commerce v. U.S. Dep’t of Labor, 174 F.3d 206, 212
(D.C. Cir. 1999); David L. Franklin, Legislative Rules, Nonlegislative Rules, and the
Perils of the Short Cut, 120 YALE L.J. 276, 309‐10 (2010).
263. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION
92‐2, AGENCY POLICY STATEMENTS ¶ I(A) (1992); see also ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES, RECOMMENDATION 89‐5, ACHIEVING
JUDICIAL ACCEPTANCE OF AGENCY STATUTORY INTERPRETATIONS (1989) (“In de‐
veloping an interpretation of a statute that is intended to be definitive, an agency
should use procedures such as rulemaking, formal adjudication, or other proce‐
dures authorized by Congress for, and otherwise appropriate to, the development
of definitive agency statutory interpretations.”).

192
E.

Harvard Journal of Law & Public Policy

[Vol. 36

Equivalency Determinations and Enforcement Discretion

Some agencies reported that they are able to effectively use
enforcement discretion to mitigate the harms of an outdated
standard incorporated by reference into a regulation. This may
be accomplished informally or via a process or standard estab‐
lished in an agency’s regulations. Whether formal or informal,
an agency’s approach depends upon the nature of its position
vis‐à‐vis regulated parties. If an agency is acting in a permis‐
sion‐granting capacity, it can use procedures that allow it to
grant approval to a party that complies with a more recent
standard that is equivalent in material respects to the standard
incorporated by reference. In contrast, if an agency is acting in
an enforcement capacity, it may reduce a penalty or simply
choose not to enforce its regulations against a party in compli‐
ance with a more recent, equivalent standard. Either approach
is particularly justified when compliance with a newer version
of a standard necessarily implies compliance with the earlier,
incorporated version of the standard.
The Coast Guard is a good example of an agency that uses
equivalency determinations in its permission‐granting capacity
to deal with outdated standards incorporated by reference. The
process and principles governing the agency’s approach are
codified in its regulations. Under the Coast Guard’s regulatory
scheme, manufacturers seek preapproval of the equipment and
materials they intend to produce and market as Coast Guard‐
approved. If a manufacturer submits a design for approval that
complies with a more recent version of a standard incorporated
by reference in applicable regulations, the Coast Guard may
nonetheless approve the design if the newer standard “has
equivalent performance characteristics.”264 This requires the
applicant to “demonstrate to the satisfaction of the Comman‐
dant that the item is at least as effective as one that meets the
requirements” specified in the relevant regulation.265 This ap‐
proach works well because it puts the burden on the regulated
264. 46 C.F.R. § 159.005‐7(c) (2011). The regulation is not specifically aimed at
permitting compliance with more recent versions of standards incorporated by
reference. Rather, it is more broadly worded to permit equivalency determina‐
tions regardless of the explanation for the formal noncompliance with applicable
regulations.
265. Id.

No. 1]

Incorporation by Reference

193

party to demonstrate equivalency, and it provides the Coast
Guard with a process that prioritizes the public interest over
rigid adherence to older, incorporated standards.
OSHA, in its capacity as an enforcement agency, uses a con‐
cept of “de minimis violations” to achieve a similar end.266
OSHA conducts inspections of employers alleged to be in vio‐
lation of its regulations.267 The regulations explicitly grant in‐
spectors discretion to issue “notices of de minimis violations
which have no direct or immediate relationship to safety or
health.”268 The agency reports that such de minimis violations
may be assessed when an employer is technically not comply‐
ing with a regulation because it is adhering to a more recent
version of a standard incorporated by reference into an appli‐
cable regulation. The upside of this approach is that it provides
some flexibility to mitigate the harms of an outdated incorpo‐
rated standard. This is particularly important given that em‐
ployers may need to—and perhaps should—comply with the
most up‐to‐date version of a voluntary consensus standard the
agency has incorporated. The downside of this approach, how‐
ever, is that the employer is still cited with a violation, which
carries a certain stigma, even if the agency has found the viola‐
tion “de minimis.” This is particularly troublesome if the viola‐
tion was unavoidable because products meeting the older ver‐
sion of the standard are no longer available in the marketplace.
And, as another agency noted, even defining “de minimis”
may be controversial depending upon the particular regulatory
standard at issue.
Enforcement agencies may also take a more informal ap‐
proach by declining to enforce a regulation against a party that
is complying with a more recent version of an incorporated
standard. Agencies have reported that this approach can be
effective. While it is less transparent than the de minimis viola‐
tion approach described above, it accommodates the possibility
that products meeting an older standard may not be available,
avoids the stigma of assessing a violation where there is no ac‐
tual harm to public health and safety, and preserves agency
resources for higher priority enforcement actions.
266. 29 C.F.R. § 1903.14(a) (2012).
267. See, e.g., id. § 1903.3 (establishing the agency’s authority to inspect). OSHA regu‐
lations also permit the exercise of discretion in assessing a penalty. See id. § 1903.15.
268. Id. § 1903.14(a).

194

Harvard Journal of Law & Public Policy

[Vol. 36

Agency experience with these approaches suggests a few
guiding principles. Agencies that find it prohibitively burden‐
some to keep up with revisions of standards incorporated by
reference in regulations should use equivalency determinations
or enforcement discretion to minimize the harm caused by out‐
of‐date references. Each such agency should appropriately
structure its approach in light of its position vis‐à‐vis regulated
parties. In the interests of fairness and transparency, agencies
should adopt regulations that clearly establish the policies and
principles governing equivalency determinations or guiding
the use of enforcement discretion.
F.

Direct Final Rulemaking

Several agencies reported having effectively used direct final
rulemaking to update regulations to reflect a revised version of a
standard previously incorporated by reference. This approach
permits an agency to lawfully truncate the rulemaking process.
Rather than initiating the comment period by publishing a No‐
tice of Proposed Rulemaking (NPRM), the agency publishes a
direct final rule. This rule becomes effective on a specified date
unless an adverse comment is filed within the established com‐
ment period. For uncontroversial rules, direct final rulemaking
can save an agency considerable time. Indeed, the Conference
has previously recommended that, “[i]n order to expedite the
promulgation of noncontroversial rules, agencies should de‐
velop a direct final rulemaking process for issuing rules that are
unlikely to result in significant adverse comment.”269
The FAA provides a good example of how the direct final
rule process should be structured.270 FAA regulations explain
that “[i]f an NPRM would be unnecessary because we do not
expect to receive adverse comment, [the agency] may issue a
direct final rule.”271 The direct final rule is published in the
Federal Register and becomes effective on the date listed, pro‐
269. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION
95‐4, PROCEDURES FOR NONCONTROVERSIAL AND EXPEDITED RULEMAKING ¶ I(A)
(1995). See generally Ronald M. Levin, Direct Final Rulemaking, 64 GEO. WASH. L.
REV. 1 (1995).
270. See ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION
95‐4, supra note 268, ¶ I.
271. 14 C.F.R. § 11.29(b) (2012).

No. 1]

Incorporation by Reference

195

vided no adverse comment or intent to file an adverse com‐
ment is received by the agency during the comment period,
which generally extends for sixty days following publication.272
An “adverse comment” is defined as one that “explains why a
rule would be inappropriate, or would be ineffective or unac‐
ceptable without a change,” or “challenge[s] the rule’s underly‐
ing premise or approach.”273 This definition is not met if the
comment is “frivolous or insubstantial,”274 or suggests a differ‐
ent rule without explaining “why the direct final rule would be
ineffective without the change.”275 If no adverse comment is
received, the FAA publishes a confirmation of the effective date
of the rule in the Federal Register within fifteen days after the
comment period closes.276 If an adverse comment is received,
however, the FAA publishes a notice to that effect in the Fed‐
eral Register and “may withdraw the direct final rule in whole
or in part.”277 If it withdraws the rule, the FAA “may incorpo‐
rate the commenter’s recommendation into another direct final
rule or may publish a notice of proposed rulemaking.”278
Several agencies identified direct final rulemaking as a viable
option for noncontroversial updates to regulations that incor‐
porate by reference. PHMSA regulations explicitly provide that
its direct final rulemaking process is appropriate for issuing
rules that “[i]ncorporate by reference the latest edition of tech‐
nical or industry standards.”279 The Coast Guard similarly uses
direct final rulemaking to update incorporations by reference.
Indeed, it recently published a direct final rule and request for
comments to “harmoniz[e] structural and performance stan‐
dards for inflatable recreational personal flotation devices
(PFDs) with the current voluntary industry consensus stan‐
dards.”280 Other agencies, including but not limited to the EPA,

272. Id. § 11.31(a).
273. Id.
274. Id. § 11.31(a)(2).
275. Id. § 11.31(a)(1).
276. Id. § 11.31(b).
277. Id. § 11.31(c).
278. Id.
279. 49 C.F.R. § 106.40(a)(2) (2011).
280. Inflatable Personal Flotation Devices, 76 Fed. Reg. 56,294, 56,294 (Sept. 13,
2011) (to be codified at 46 C.F.R. pt. 160, effective September 26, 2011, if no ad‐
verse comment is received by May 31, 2011).

196

Harvard Journal of Law & Public Policy

[Vol. 36

reported significant success using direct final rulemaking to
update regulations that incorporate by reference.
For noncontroversial substantive updates to incorporations
by reference in regulations, agencies authorized to regulate
under Section 553 of the Administrative Procedure Act
(APA)281 should use direct final rulemaking.282 Before an agency
uses direct final rulemaking to update incorporations by refer‐
ence, it should adopt regulations establishing the principles
and procedures it will use. These principles and procedures
should conform to the Conference’s previous recommenda‐
tions for direct final rulemaking.283
G.

Statutory Solutions

The tools discussed above are not always sufficient for an
agency to keep incorporations up‐to‐date. Dynamic incorpora‐
tions, however, are legally prohibited and bad policy. Where
the required update relates to the substance of the incorporated
material, and not merely to the access information published in
the Federal Register and CFR, a technical amendment is of no
use. Confining incorporations by reference to nonbinding pol‐
icy and guidance documents is generally inadvisable. Using
enforcement discretion can mitigate the harms of an out‐of‐
date standard, but is not a genuine solution to the problem of
outdated references. Finally, while direct final rulemaking can
work, the approach has limitations. A single adverse comment
can derail the agency’s efforts. This risk, in the face of severe
time and resource limitations, leads agencies to be cautious in
using direct final rulemaking if there is any reason to believe
that a revision will be controversial. And for agencies subject to
procedural requirements beyond those provided in Section 553
of the APA, such as OSHA, direct final rulemaking may simply
not be an option. A statutory solution establishing an abbrevi‐
ated notice‐and‐comment procedure for updating regulations
281. 5 U.S.C. §§ 551–559, 701–706 (2006).
282. As the Conference has previously explained, “direct final rulemak‐
ing . . . complies with the basic notice‐and‐comment requirements in section 553
of the APA.” ADMINISTRATIVE CONFERENCE OF THE UNITED STATES,
RECOMMENDATION 95‐4, PROCEDURES FOR NONCONTROVERSIAL AND EXPEDITED
RULEMAKING ¶ I(A) (1995). Agencies subject to procedural requirements beyond
those contained in Section 553 may not be able to use direct final rulemaking.
283. See id. ¶ I.

No. 1]

Incorporation by Reference

197

to reflect new versions of materials incorporated by reference
may thus be in order.
CPSC’s statutes provide examples of potential statutory solu‐
tions to the updating challenge. Several provisions direct CPSC
to use identified voluntary consensus standards, while provid‐
ing a mechanism for updating the incorporation by reference.
First, Section 106 of the Consumer Product Safety Improve‐
ment Act (CPSIA)284 declares that the provisions of ASTM’s toy
standard “shall be considered to be consumer product safety
standards issued by the Commissions.”285 With respect to up‐
dating, the statute provides that “[i]f ASTM International (or its
successor entity) proposes to revise” the standard, “it shall no‐
tify the Commission of the proposed revision,” and “[t]he
Commission shall incorporate the revision or a section of the
revision into the consumer product safety rule.”286 The updated
regulation becomes “effective 180 days after the date on which
ASTM International notifies the Commission of the revision
unless, within 90 days after receiving that notice, the Commis‐
sion notifies ASTM International that it has determined that the
proposed revision does not improve the safety of the consumer
product covered by the standard.”287 In the event the Commis‐
sion makes such a determination, “the existing standard shall
continue to be considered to be a consumer product safety rule
without regard to the proposed revision.”288
A second example is found in CPSC’s statutory mandate to
regulate the safety of all‐terrain vehicles (ATVs). This statute de‐
clares an ANSI standard to be a consumer product safety stan‐
dard289 and requires ANSI or its successor to notify CPSC when
it is considering a revision.290 “Within 120 days after it receives
notice of such a revision,” the Commission is required to “issue
a notice of proposed rulemaking in accordance with section 553
of title 5 to amend” its regulations “to include any such revision
that the Commission determines is reasonably related to the safe

284. Pub. L. No. 110‐314, 122 Stat. 3016 (2008).
285. 15 U.S.C. § 2056b(a) (1996).
286. Id. § 2056b(g).
287. Id.
288. Id.
289. See 15 U.S.C. § 2089(a)(1) (1996).
290. See id. § 2089(b)(1).

198

Harvard Journal of Law & Public Policy

[Vol. 36

performance of all‐terrain vehicles.”291 The Commission is fur‐
ther required to “promulgate an amendment to the stan‐
dard . . . within 180 days after” publishing the NPRM.292
Yet a third example is found in the statute governing CPSC’s
regulation of swimming pool and spa drain covers. Like the
others, this provision declares an ANSI standard to be a con‐
sumer product safety standard.293 The updating provision in
this statute requires ANSI or its successor to notify CPSC if a
revision is under consideration.294 But the remainder of the up‐
dating process is simpler: “If the Commission determines that
the proposed revision is in the public interest, it shall incorpo‐
rate the revision into the standard after providing 30 days no‐
tice to the public.”295
One benefit of these provisions is that they vest the agency
with ultimate authority to decide whether to update a regula‐
tion to incorporate a new version of a standard. As several
agencies reported, updating to a new version of an incorpo‐
rated standard is not always desirable as a matter of substan‐
tive regulatory policy. Standard‐development organizations
typically revise standards on a set schedule, so a new version
of a standard may not be different enough to warrant the in‐
vestment required to conduct a rulemaking, even pursuant to
minimized procedures such as those described above. More‐
over, a new version of a standard may include meaningful
changes that nonetheless do not further the agency’s regulatory
goal or purpose. The changes may affect parts of a standard an
agency has not incorporated, weaken the standard, or move it
in a direction inconsistent with the agency’s statutory mandate
or policy judgment.
At the same time, a statutory solution would not be workable
if it required agencies to identify, evaluate, and respond to eve‐
ry revision of every standard incorporated by reference. Agen‐
cies consistently reported that they lack the resources to take
on such a task. The CPSC statutes described above usefully put
the burden on the standard developer to notify the agency of a
291. Id. § 2089(b)(2).
292. Id.
293. See 15 U.S.C. § 8003(a)–(b) (2008).
294. See id. § 8003(b).
295. Id.

No. 1]

Incorporation by Reference

199

pending revision. But they do not require the standard devel‐
oper to identify and explain the changes to the standard, leav‐
ing the agency with the responsibility of doing that work. Some
agencies reported that they achieve a better result by requiring
a regulated party or standard‐development organization to file
a petition notifying the agency that a new version of a standard
is available and requesting that the agency update the regula‐
tion incorporating it. The party filing such a petition typically
must explain how the new version of a standard differs from
the old version and demonstrate that updating would further
the agency’s regulatory purpose.
In light of these considerations and the significant difficulty
some agencies experience when updating regulations to reflect
revised standards, Congress should consider authorizing agen‐
cies to use streamlined procedures to update incorporations by
reference. An appropriate statutory solution would: (1) require
interested parties to file a petition for rulemaking that would
notify the agency of a revised standard, identify the changes
from the incorporated version of the standard, and explain
why updating would be consistent with the agency’s regula‐
tory purpose; (2) vest the agency with authority to determine
whether to act on the petition; (3) authorize the agency, upon a
finding that updating is consistent with the regulatory purpose
of the relevant regulation, to issue a direct final rule under Sec‐
tion 553; and (4) provide that the rule shall become effective if
no adverse comments are received or, alternatively, following
the agency’s publication, prior to the effective date, of a re‐
sponse to any adverse comments received, provided such
comments do not demonstrate that updating is inconsistent
with the regulatory purpose. Such a procedure would be of
significant use to agencies that are otherwise required to com‐
ply with heightened rulemaking procedures. It would allow
public participation in updating, while preventing a single ad‐
verse comment from derailing an agency’s effort to keep incor‐
porations properly up‐to‐date.

200

Harvard Journal of Law & Public Policy
IV.

[Vol. 36

PROCEDURAL AND DRAFTING ISSUES

OFR regulations and Chapter six of the DDH296 establish the
policies and procedures agencies must follow to secure OFR
approval to publish a rule that incorporates by reference. These
requirements provide that an agency must submit a written
letter requesting approval twenty working days before it in‐
tends to publish the relevant rule.297 The request must include a
draft “of the final rule document that uses the proper language
of incorporation,”298 as well as a copy of the material to be in‐
corporated.299 Only certain kinds of materials are eligible for
incorporation by reference, an issue discussed in greater detail
below.300 The materials must be “[c]learly identified by the title,
date, edition, author, publisher, and identification number of
the publication,”301 and the draft rule must use proper incorpo‐
ration by reference language and include information regard‐
ing where the public can view or obtain a copy of the incorpo‐
rated material.302 Finally, incorporation by reference language
must meet certain formatting requirements.303
In some cases, OFR has used specialized procedures, estab‐
lished by long‐standing letter agreements with particular agen‐
cies, for processing certain types of frequently recurring ap‐
proval requests. For example, OFR has developed a specialized
approval process for the FAA’s Airworthiness Directives,
which are published nearly every day and almost always in‐
corporate by reference. Similarly, OFR and EPA have estab‐
lished a specialized procedure for EPA’s approval via incorpo‐
ration by reference of State Implementation Plans. In recent
years, however, OFR has sought to make its approval process
more formal and consistent. Thus, while observing existing let‐
296. See DDH, supra note 240.
297. See 1 C.F.R. § 51.5(a)(1) (2011); DDH, supra note 240, at 6‐3. The DDH pro‐
vides an example of what an agency’s request letter should look like. Id. at 6‐4.
298. 1 C.F.R. § 51.5(a)(2) (2011); see also id. § 51.9 (establishing the proper lan‐
guage of incorporation by reference). The DDH clarifies that a copy of the draft
rule document should be submitted. DDH, supra note 240, at 6‐3.
299. See 1 C.F.R. § 51.5(a)(3) (2011).
300. See infra Part IV.A.
301. DDH, supra note 240, at 6‐3.
302. See 1 C.F.R. §§ 51.1(a)(2), 51.5(a)(2), 51.9 (2011); DDH, supra note 240, at 6‐5.
303. See DDH, supra note 240, at 6‐7 to 6‐11.

No. 1]

Incorporation by Reference

201

ter agreements with agencies, OFR now is no longer creating
new, specialized procedures.
OFR provides several resources, including written guidance,
training, and staff assistance, to help agencies navigate its pro‐
cess and requirements. The DDH also provides detailed guid‐
ance to agencies seeking to publish rules that incorporate by
reference. In February 2011, the OFR’s Legal Affairs and Policy
Staff provided additional guidance on incorporation by refer‐
ence on the OFR Blog.304 In a two‐part series, OFR staff ad‐
dressed incorporation by reference generally, as well as par‐
ticular incorporation by reference issues related to Executive
Order 13563, which directed agencies to retrospectively review
regulations. If these written guidance materials leave agency
personnel confused or with additional questions, OFR provides
staff assistance upon request.
Research revealed several procedural and drafting issues
that commonly cause problems for agencies seeking to incor‐
porate by reference. These issues included: (1) determining
what types of materials are appropriate for incorporation by
reference; (2) bringing new and existing regulations into com‐
pliance with OFR’s relatively recent policies regarding proper
formatting for incorporation by reference language; (3) deter‐
mining the legal effect of secondary references; (4) resolving
conflicts between regulations and incorporated materials; and
(5) securing timely approval of incorporations by reference.
Agencies that reported experiencing the least difficulty with
these issues follow identifiable best practices that other agen‐
cies should consider adopting.
A.

Identifying Materials Appropriate for Incorporation

Material is appropriate for incorporation only if it contributes
to, and does not detract from, the usefulness and readability of
administrative rules. A regulation should convey clearly what
an agency requires of regulated parties, and only incorporate
material that provides the tools—such as data, standards, tech‐

304. See Executive Order 13563 and Incorporation by Reference, OFR BLOG (Feb.
18, 2011), http://www.federalregister.gov/blog/2011/02/executive‐order‐13563‐
and‐incorporation‐by‐reference; What is Incorporation by Reference?, OFR BLOG
(Feb.
17,
2011),
http://www.federalregister.gov/blog/2011/02/what‐is‐
incorporation‐by‐reference.

202

Harvard Journal of Law & Public Policy

[Vol. 36

niques, and so on—necessary for compliance.305 A regulation
should be complete on its face, without the need to resort to in‐
corporated materials to understand the substantive policy estab‐
lished by the regulation. This approach ensures that regulated
parties are sufficiently notified of what they must do to comply
with the law.306 When determining whether and how to incorpo‐
rate by reference, an agency should consider whether the sub‐
stantive policy established by its rule is complete on its face
without referring to the incorporated material.
Material may also be inappropriate for incorporation by refer‐
ence if it uses voluntary or advisory, rather than mandatory,
language. Agencies reported that issues arise when a regulation
provides that regulated parties “shall” comply with a voluntary
standard indicating that a particular policy “should” be fol‐
lowed. In such a situation, the “should” language signifies that
the incorporated standard is merely advisory and not manda‐
tory.307 Agencies that incorporate such seemingly advisory mate‐
rials by reference may not be able to enforce regulations as in‐
tended. Alternatively, agencies may confuse regulated parties by
incorporating by reference material that is phrased as—and was
intended by its drafter to be—nonregulatory.308 Therefore, agen‐
cies should carefully review the language used in the material it
is considering incorporating by reference to determine whether
it is mandatory or merely advisory or voluntary. They should
only incorporate by reference materials that use language ap‐
propriate for mandatory regulation.
Finally, agencies reported some frustration with OFR policies
restricting the incorporation by reference of federal government
publications. Material published in the Federal Register or U.S.
Code may not be incorporated by reference because it is already

305. See 1 C.F.R. § 51.1(c)(2) (2011).
306. See, e.g., In the Matter of FM Transmitter Site Map Submissions Required
by FCC Forms 301 & 340, 1 FCC Rcd. 381 (1986) (allowing rejected license appli‐
cants to refile where procedural requirements incorporated by reference were not
properly explained in the text of the regulation, but limiting such relief to those
who had preserved appeal rights).
307. See Sec’y of Labor v. Brown & Root, Inc., 9 BNA OSHC 1027 (No. 76‐2938, 1980).
308. An agency should revise a regulation if it concludes that it has incorporated
nonregulatory material in error. See, e.g., Revision of Incorporation by Reference Pro‐
visions, Final Rule, 70 Fed. Reg. 23,002 (to be codified at 14 CFR §§ 71, 97) (remov‐
ing incorporation by reference of certain nonregulatory documents).

No. 1]

Incorporation by Reference

203

published.309 Nor are agencies generally permitted to incorpo‐
rate their own documents by reference, although OFR may
waive this prohibition in exceptional circumstances.310 This rule,
as previously explained, prevents agencies from circumventing
publication requirements. Agencies further reported that they
are not permitted to quote governing statutes in regulations, and
are thus forced to paraphrase statutory requirements when
promulgating or implementing rules. Agencies worry that such
paraphrasing is inefficient, awkward, and confusing with regard
to statutory requirements. OFR reported, however, that agencies
may cross‐reference the CFR and cite to material published in
the U.S. Code. They may also use the verbatim language of a
statute without using quotation marks. These options may miti‐
gate agency concerns. Thus, agencies should use statutory lan‐
guage or cite the statute when promulgating a regulation im‐
plementing that statute’s mandate.
B.

Standardizing Language and Formatting

Over the last decade, OFR has made a concerted effort to
standardize the formatting and language of incorporation to
improve the clarity and readability of the Federal Register and
CFR. Whereas, in the past, an agency was required to include
only the “proper language of incorporation,”311 OFR now fur‐
ther requires agencies to use specific formatting to do so.312 If
an agency is incorporating a single material in a single regula‐
tory provision, the language of incorporation is included im‐
mediately after the first reference to the material.313 If an agency
is incorporating multiple provisions, it may include the lan‐
guage of incorporation immediately following each reference,
segregate the language into a separate paragraph, or centralize
all incorporation language in a single regulatory section.314 The
regulatory text must always use the phrase “incorporation by
reference” and provide complete information on how to access
the incorporated material.315
309. See 1 C.F.R § 51.7(c) (2011); DDH, supra note 240, at 6‐3.
310. See DDH, supra note 240, at 6‐3.
311. 1 C.F.R. § 51.9 (2012).
312. See DDH, supra note 240, at 6‐6.
313. See id. at 6‐7.
314. See id. at 6‐8.
315. See id. at 6‐5.

204

Harvard Journal of Law & Public Policy

[Vol. 36

When an agency updates a part of the CFR that contains in‐
corporations that do not conform to OFR’s improved formatting
and language requirements, OFR asks the agency to bring those
older incorporations into compliance. One agency that has re‐
sponded to OFR’s efforts in this respect is NHTSA, which has
moved all of its incorporation by reference information to a table
located in a single provision of the CFR.316 Although the project
takes some work and is ongoing, it is contributing to the clarity
of NHTSA’s regulations. As the gatekeeper to the CFR, OFR is
the only agency in a position to ensure that such consistency and
clarity is achieved throughout the CFR. But it would be very
burdensome—for both agencies and OFR—to comprehensively
reformat and rewrite all incorporations currently contained in
the CFR. As a practical matter, OFR’s strategy of asking agencies
to reformat incorporation language when they are making other
changes to the same part strikes a reasonable balance.
Some agencies, however, have reported that OFR’s efforts to
standardize incorporation formatting and language have
caused confusion and unexpected delays in publishing rules. In
some cases, agencies have been caught by surprise when they
seek to publish changes to a regulation and OFR asks them to
reformat incorporation language in other provisions of the
same part. The task can be particularly time‐consuming when
the part contains multiple or complicated qualified incorpora‐
tions. Improving communication and cooperation between
OFR and individual agencies, as described in greater detail be‐
low, may be the best way to address these difficulties.317
C.

Determining the Legal Effect of Secondary References

In some cases, an agency may incorporate a document that
itself incorporates by reference one or more “second‐tier” doc‐
uments. In some cases, the second‐tier document may even re‐
fer to a third‐tier document, and so on. For example, OSHA has
proposed incorporating by reference an NFPA standard on
combustible dust that “mandates compliance with 36 other
NFPA standards” that, “in turn, reference additional stan‐

316. See 49 C.F.R. § 571.5 (2012).
317. See infra Part IV.F.

No. 1]

Incorporation by Reference

205

dards.”318 Such secondary references raise several issues. By
incorporating the first‐tier document by reference, does the
agency require compliance with or indicate its approval of the
secondary document? Is the agency legally required to directly
incorporate the secondary document by reference into the rele‐
vant regulation? If the first‐tier document’s reference to the se‐
cond‐tier document is undated, which, if any, version of the
second‐tier document is required? And does the failure to key
the second‐tier document to a particular version violate OFR’s
requirement that incorporations by reference be limited to a
particular version?
The procedural requirements for incorporation by reference
address only a few of the issues raised by secondary references.
OFR has taken the position that an agency is procedurally re‐
quired to properly incorporate by reference only those external
standards that it seeks to make mandatory. The staff does not
review incorporated documents to determine whether they in‐
clude secondary references, and does not take a position on the
legal effect of any such secondary references. Rather, if asked,
OFR encourages individual agencies to evaluate any secondary
references and determine for themselves whether it makes
sense for them to directly incorporate the secondary documents
into the regulation.
Secondary references are relatively common, but few agencies
have explicitly considered or taken a position on the substantive
issues they raise. One exception is OSHA. In the combustible
dust rulemaking noted above, OSHA requested comment on its
“concern” regarding “[t]he multitude of mandatory primary ref‐
erences, secondary references, and other subordinate references
in each NFPA standard that could result in an unnecessary bur‐
den on employers.”319 Another exception is NRC. When NRC
incorporated IEEE Standard 603‐1991 by reference into Section
50.55a of its regulations, it took the position that, “[a]s a matter
of law, the other standards referenced in IEEE Std. 603‐1991 are
not rulemaking requirements” because “Section 50.55a does not
contain language explicitly requiring [their] use” and they “have
not been approved for incorporation by reference by the

318. Combustible Dust, 74 Fed. Reg. 54,333, 54,339 (Oct. 21, 2009) (to be codified
at 29 C.F.R. § 1910).
319. Id. at 54,345.

206

Harvard Journal of Law & Public Policy

[Vol. 36

[OFR].”320 Whether compliance with a second‐tier reference is
mandatory may be indicated by the language of the first‐tier
document, but such language may not always be clear.
When an agency incorporates a document that references a
second (or greater)‐tier document, the agency should acknowl‐
edge, consider, and express a view regarding the substantive
legal effect of the secondarily referenced document(s). If the
agency wants to make the second‐tier document mandatory, it
should incorporate it by reference. This will ensure proper notice
of regulatory requirements. OFR should consider amending the
DDH to highlight the potential issue of secondary references and
explain its position. This would bring attention to the issue and
encourage agencies to consider and take a position on the legal
status of secondary references in appropriate rulemakings.
D.

Addressing Potential Conflicts

Another issue agencies identified is the potential for conflict to
arise between an agency’s regulations and a document it has in‐
corporated by reference. Agencies should consider the possibility
that a regulation may conflict with a requirement incorporated by
reference and, if possible, should provide guidance to regulated
parties regarding how the conflict should be resolved. For exam‐
ple, in its regulations governing the transportation of petroleum
gas through pipelines, PHMSA has clearly stated that if its regula‐
tions conflict with the ANSI/NFPA standards it has incorporated
by reference, the incorporated standards prevail.321 Agencies may
also consider adopting a regulation that establishes a default rule
for resolving unforeseeable conflicts between regulatory provi‐
sions and incorporated materials. The advantage of a default rule
is that it provides regulated parties with concrete guidance when
faced with an unforeseeable conflict. On the other hand, such a
default rule may not yield an agency’s preferred regulatory out‐
come in particular applications.

320. Codes and Standards: IEEE National Consensus Standard, Final Rule, 64
Fed. Reg. 17,944, 17,945 (Apr. 13, 1999) (to be codified at 10 C.F.R. § 50).
321. 49 C.F.R. § 192.11(c) (2011).

No. 1]

Incorporation by Reference
E.

207

Securing Timely Approval from
the Office of the Federal Register

OFR has twenty working days to complete its review proc‐
ess, and an agency cannot publish a regulation that incorpo‐
rates by reference until OFR completes its review and grants
approval.322 Requests for approval “do not qualify for expe‐
dited processing.”323 If a request is denied, the agency must re‐
submit it, at which point the twenty day period starts over. The
practical implication is that agencies must submit requests for
approval no less than twenty working days before they want to
publish the relevant rule.324 If a rule contains multiple incorpo‐
rations by reference or is complicated by an agency’s qualified
approval of the incorporated material (for example, the agency
is incorporating only parts of a standard or is incorporating it
with specified modifications or additions), it may be prudent to
submit the request even earlier.
My research revealed several instances in which the publica‐
tion of a rule was delayed because agencies did not comply with
OFR’s incorporation by reference requirements. In some cases,
agencies were unaware of the twenty‐day process or simply
failed to submit their application to OFR before filing a rule for
publication.325 This can be particularly problematic when the
agency is subject to a congressional or other deadline for pub‐
lishing the rule in question. The Legal Policy staff, which proc‐
esses all incorporation by reference requests and is also charged
with a multitude of other tasks, consists of only three employees.
While OFR staff make every effort to prioritize requests for ap‐
proval that are submitted late, it is not always possible to do the
work necessary to secure approval in a shortened timeframe.
Publication can also be delayed if an agency submits an incom‐
plete request for approval. Preparing an application for approval
requires adherence to highly technical requirements and meticu‐

322. See 1 C.F.R. §§ 51.3(b), 51.5(a)(1) (2011).
323. DDH, supra note 240, at 6‐3.
324. See, e.g., 1 C.F.R. § 51.5(a)(1) (2011) (requiring agencies to “[m]ake a written
request for approval at least 20 working days before the agency intends to submit
the final rule document for publication”).
325. The DDH warns that “[s]ince this is a technical subject area, it sometimes cre‐
ates confusion that can significantly delay [incorporation by reference] request re‐
view and approval of your final rule document.” See DDH, supra note 240, at 6‐1.

208

Harvard Journal of Law & Public Policy

[Vol. 36

lous attention to detail. This is especially true if the rule contains
multiple or qualified incorporations by reference.
Improved communication and cooperation between OFR
and individual agencies may be the best way to address these
issues and prevent delays in publishing rules. This approach is
examined in the next section.
F.

Making the Process Work Better

Agencies that have experienced few or no problems with
OFR’s incorporation by reference requirements consistently
reported that they had established good communication and
working relationships with OFR. A few tactics were reported
as being particularly successful.
First, each agency should designate its OFR liaison or an‐
other employee as the single point of contact with OFR to
maintain a close working relationship between the two agen‐
cies. Several agencies have tasked just one or two people with
submitting all requests for incorporation by reference. This
person may be the agency’s OFR liaison officer326 or a member
of the agency’s legal or rulemaking staff. The advantage is that
this person becomes an expert in OFR policy and can form
good working relationships with OFR staff.
Second, agencies should find a way to get legal counsel or
other experts in OFR policy involved early in the rulemaking
process. One agency, the Coast Guard, uses a very effective team
approach to rulemaking. Each team is assigned legal counsel
early in the process. This ensures that someone involved in the
rulemaking from the beginning is well versed in incorporation
by reference (and other legal) requirements, enabling the agency
to prepare a timely and complete request for approval. The EPA
takes a slightly different approach, including incorporation by
reference issues in its comprehensive internal rulemaking guid‐
ance, which provides employees with a flowchart of issues that
must be addressed during rulemaking.327
326. See, e.g., 1 C.F.R. § 16.1(a)(1) (2011) (requiring agencies to designate a liaison
officer); id. § 16.2 (specifying the duties of the liaison).
327. See EPA, EPA‘S ACTION DEVELOPMENT PROCESS: GUIDANCE ON EXECUTIVE
ORDER 13132: FEDERALISM, 8, 39, 53 (2008), available at http://www.govexec.com/pdfs/
111908rb1.pdf; see also CATHERINE M. SHARKEY, FEDERAL AGENCY PREEMPTION OF
STATE LAW (2010), available at http://www.acus.gov/wp‐content/uploads/

No. 1]

Incorporation by Reference

209

Third, agencies should reach out to OFR early in the rule‐
making process. OFR’s regulations require it to assist agencies
in publishing,328 and the DDH “encourages regulation drafters
and agency liaisons to contact [OFR staff] as early as possible
when considering using an incorporation by reference in a reg‐
ulation.”329 OFR and some agencies reported that taking advan‐
tage of this opportunity reduced or eliminated problems and
delays in securing approval for incorporations by reference.
Fourth, agencies should take advantage of OFR training op‐
portunities. OFR offers general publication training to agencies
and has provided incorporation by reference training when
requested. Agencies that have multiple offices or departments,
or large rulemaking staffs, frequently incorporate by reference,
and have experienced difficulties with the approval process
should consider working with OFR to set up a training session.
Finally, agencies should adhere closely to the DDH. Agency
staff who will be responsible for submitting requests for ap‐
proval to OFR should read and pay close attention to the guid‐
ance provided in the DDH. If something is unclear, they should
reach out to OFR for clarification as early as possible.
Agencies that reported difficulties with OFR’s incorporation
by reference process and requirements can best address those
issues by taking these steps to improve communication and
establish a working relationship with OFR staff. Doing so
would prevent confusion, surprise, and delays in publication,
while facilitating the OFR’s good efforts to make the CFR more
consistent and readable. It would also help ensure that agencies
secure timely approval of incorporations by reference.
OFR is currently testing an electronic method of submitting and
processing incorporation by reference requests that holds signifi‐
cant promise to improve the process. The method uses an FTP
server, to which agencies may upload electronic copies of their

downloads/2011/02/Sharkey‐Final‐ACUS‐Report_12_20.pdf (last visited Nov. 22,
2011).
328. See, e.g., 1 C.F.R. § 15.1 (2011) (requiring the Director of the Federal Register
to assist agencies in publication); id. § 15.3 (requiring OFR staff to “provide infor‐
mal assistance and advice to officials of the various agencies with respect to gen‐
eral or specific programs of regulatory drafting, procedures, and promulgation
practices”); id. § 51.5(b) (“Agencies may consult with the [OFR] at any time with
respect to the [incorporation by reference] requirements.”).
329. DDH, supra note 240, at 6‐1.

210

Harvard Journal of Law & Public Policy

[Vol. 36

written requests for approval, final rule documents, and copies of
the material to be incorporated. Agencies can create different
folders on the server for different requests, and OFR can upload
documents (for example, redlines of incorporation language in
draft final rules) as they work with agencies towards approval.
Only the OFR staff, however, is able to delete documents from the
server. OFR staff and participating agencies have reported that
the procedure is working well so far. One particular advantage is
the ability to submit incorporated documents in electronic form.
This feature saves time and money by eliminating the need to de‐
liver large amounts of paper (in some cases, a publication may
occupy one or more boxes when printed) to the OFR. It is also a
convenient innovation as agencies are increasingly using elec‐
tronic copies of standards themselves, and only obtain a paper
copy for submission to OFR.330 OFR should continue to expand
upon its efforts to transition to an electronic submission and re‐
view process for incorporation by reference requests.
CONCLUSION
Over the past several decades, as incorporation by reference
in the CFR has become more common, issues with the practice
have emerged. Although these issues affect all agencies that
incorporate by reference, different agencies have used different
approaches to address them. Some of those approaches have
proven more effective than others, for identifiable reasons. Us‐
ing the information provided in this Article, other agencies
should consider whether they too could use those techniques to
improve the practice of incorporation by reference. Particularly
with respect to the public access problem, such agency efforts
are needed to reconcile incorporation by reference to the de‐
mands of modern regulatory values.

330. The OFR public inspection room is equipped with computer terminals, on
which members of the public can view incorporated materials stored in electronic
form. Omitting the requirement that an agency submit a paper copy of an incor‐
porated document thus does not impair public inspection.