Incorporation by reference in an open-government age.

• Author: Bremer, Emily S.
• Position: IV. Procedural and Drafting Issues through Conclusion, with footnotes, p. 200-210

IV. PROCEDURAL AND DRAFTING ISSUES

OFR regulations and Chapter six of the DDH (296) 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 intends 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 incorporated. (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 incorporation by reference language and include information regarding where the public can view or obtain a copy of the incorporated material. (302) Finally, incorporation by reference language must meet certain formatting requirements. (303)

In some cases, OFR has used specialized procedures, established by long-standing letter agreements with particular agencies, for processing certain types of frequently recurring approval 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 incorporate by reference. Similarly, OFR and EPA have established a specialized procedure for EPA's approval via incorporation 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 letter 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 process and requirements. The DDH also provides detailed guidance 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 reference on the OFR Blog. (304) In a two-part series, OFR staff addressed incorporation by reference generally, as well as particular 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 incorporate by reference. These issues included: (1) determining what types of materials are appropriate for incorporation by reference; (2) bringing new and existing regulations into compliance with OFR's relatively recent policies regarding proper formatting for incorporation by reference language; (3) determining 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 agencies should consider adopting.

1. 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, techniques, and so on--necessary for compliance. (305) A regulation should be complete on its face, without the need to resort to incorporated materials to understand the substantive policy established 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 incorporate by reference, an agency should consider whether the substantive policy established by its rule is complete on its face without referring to the incorporated material.

   Material may also be inappropriate for incorporation by reference 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 followed. In such a situation, the "should" language signifies that the incorporated standard is merely advisory and not mandatory. (307) Agencies that incorporate such seemingly advisory materials by reference may not be able to enforce regulations as intended. 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, agencies 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 appropriate 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 published. (309) Nor are agencies generally permitted to incorporate 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 mitigate agency concerns. Thus, agencies should use statutory language or cite the statute when promulgating a regulation implementing that statute's mandate.

2. 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 further requires agencies to use specific formatting to do so. (312) If an agency is incorporating a single material in a single regulatory provision, the language of incorporation is included immediately after the first reference to the material. (313) If an agency is incorporating multiple provisions, it may include the language 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)

   When an agency updates a part of the CFR that contains incorporations 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 responded 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 incorporations. Improving communication and cooperation between OFR and individual agencies, as described in greater detail below, may be the best way to address these difficulties. (317)

3. 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" documents. In some cases, the second-tier document may even refer 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 standards." (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...