Incorporation by Reference

Incorporation by reference allows agencies to fulfill their legal obligation to publish rules in the Code of Federal Regulations (CFR) by referring to standards or other materials that have been published elsewhere.  For example, when an agency adopts a standard created by a private standard-setting organization as a mandatory regulation, it typically publishes the standard by incorporating it by reference into the CFR.  Such incorporation by reference is common in part because federal policy requires regulatory agencies to use voluntary consensus standards in lieu of government unique standards where this is not impracticable or inconsistent with statutory mission. This policy builds upon Conference recommendation, No. 78-4, “Federal Agency Interaction with Private Standard-Setting Organizations in Health and Safety Regulations,” adopted in December 1978, which encourages the use of voluntary consensus standards in health and safety regulation.  In the more than thirty years since the Conference issued Recommendation No. 78-4, agencies have promulgated thousands of regulations that incorporate by reference standards published elsewhere.

The Conference has examined legal and policy issues related to agency use of incorporation by reference.  The practice raises common issues that individual agencies deal with differently, and the aim of the Conference’s project was to consolidate the dispersed knowledge of affected agencies, identify best practices, and recommend ways to improve the process.  Specific challenges addressed include updating regulations that incorporate extrinsic materials by reference, ensuring access to referenced materials, addressing copyright issues that may arise, and finding ways to improve procedures for approving and managing regulations that incorporate other materials by reference.