Incorporation by Reference in an Open-Government Age
Bremer, Emily S., Harvard Journal of Law & Public Policy
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.
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, 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. …