Magazine article The Small Business Advocate

Advocacy Engages on "Incorporation by Reference" Issue

Magazine article The Small Business Advocate

Advocacy Engages on "Incorporation by Reference" Issue

Article excerpt

The Office of Advocacy has been very active on the Incorporation by Reference (IBR) issue whereby federal agencies adopt industry consensus standards into their regulations. Advocacy hosted a small business regulatory roundtable on May 9, and then brought a group of small entity representatives to meet with officials from the Office of Management and Budget (OMB) to discuss this issue. Advocacy also participated in the National Institute for Standards and Technology's recent IBR workshop, and on June 1, filed comment letters with the Office of the Federal Register (OFR) and OMB reflecting small entity input on this practice.

As indicated, IBR refers to federal agencies' adopting materials, such as industry consensus standards, into their regulations by simply referencing them in the Federal Register. The National Technology Transfer Advancement Act encourages federal agencies to use private standards (rather than developing their own standards), and OMB has issued guidance in the form of OMB Circular A-1 19. These private technical standards are developed by a wide array of standards development organizations (SDOs), and it is difficult to generalize about their make-up. Further, many of the SDO materials are copyrighted and many SDOs fund their operations by selling these materials to the public.

The EBR issue was elevated last winter when the Administrative Conference of the United States (ACUS) issued a recommendation encouraging federal agencies to use IBR. Following the ACUS recommendation, a group of legal scholars associated with ACUS filed a petition with OFR asking the agency to define the term "reasonably available," including the possibility that it should mean available on the Internet for free (as Congress has just mandated for one Department of Transportation agency). …

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