Incorporation by reference
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Incorporation by reference refers to the practice of declaring that the entire text of a referenced document is included in another document without reprinting the text of the cited document. The practice is used to save space in the text of government regulations and legal documents such as court pleadings, contracts, and wills. The referenced document may or may not be attached to the end of the incorporating document.[1][2][3][4][5][6]
Federal administrative agencies use incorporation by reference when drafting regulations and contracts. Incorporation by reference may be used by an agency during the rulemaking process in order to adopt a set of standards developed by a regulated industry. Material incorporated into a regulation or a legal document such as a contract carries the same force and effect of law as the rest of that regulation or document.[7][8][9][10][11]
Background
Federal administrative agencies use incorporation by reference to incorporate information, including voluntary consensus standards developed by private industries, into federal regulations during the rulemaking process. This practice reduces the amount of rule-related material that agencies publish in the Federal Register and the Code of Federal Regulations (CFR). Material incorporated by reference into an agency rule has the same legal force and effect as the text of the rule itself. The Office of the Federal Register is responsible for approving these incorporations by reference.[8][9][10]
For example, the Federal Aviation Administration (FAA) uses incorporation by reference to include manufacturer service bulletins and repair manuals in its airworthiness directives.[10] According to the FAA, "Airworthiness Directives (ADs) are legally enforceable regulations issued by the FAA in accordance with 14 CFR part 39 to correct an unsafe condition in a product. Part 39 defines a product as an aircraft, engine, propeller, or appliance."[12]
Government agencies also use incorporation by reference when drafting contracts. According to a 2017 article written by consultant Richard D. Lieberman and published on the website of the Public Contracting Institute, a firm that offers training for government contractors, "Almost every government contract incorporates contract clauses by reference. Indeed, a typical government contract may incorporate 10 to more than 200 clauses by reference. ... The contractor is fully responsible for compliance with all clauses incorporated by reference, just as if they were typed in full in the contract."[7]
Theory and practice
Use of incorporation by reference by federal administrative agencies
According the website of the National Archives and Records Administration as of October 2017, federal agencies use incorporation by reference to include private standards in their regulations and do not use it to incorporate material created by government agencies:[9]
| " | Incorporation by reference is used primarily to make privately developed technical standards Federally enforceable. Agency generated documents are presumptively ineligible for incorporation by reference because that material can and should be published in full text in the Federal Register and CFR. Agencies are not authorized to incorporate by reference material on their web sites as a substitute for Federal Register publication.
The legal effect of incorporation by reference is that the material is treated as if it were published in the Federal Register and CFR. This material, like any other properly issued rule, has the force and effect of law. Congress authorized incorporation by reference in the Freedom of Information Act to reduce the volume of material published in the Federal Register and CFR. (See 5 U.S.C. 552(a) and 1 CFR part 51). Congress gave complete authority to the Director of the Federal Register to determine whether a proposed incorporation by reference serves the public interest.[13] |
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| —National Archives and Records Administration, "Code of Federal Regulations Incorporation by Reference"[9] | ||
According to a study of agency experience with incorporation by reference published in 2011 by the Administrative Conference of the United States, an independent federal agency tasked with developing recommendations to improve federal administrative processes, incorporation by reference reduces the size of government publications by allowing agencies to incorporate existing documents without reprinting them:[8]
| " | Incorporation by reference allows agencies to comply with the requirement of publishing rules in the Federal Register to be codified in the Code of Federal Regulations (CFR) by referring to material published elsewhere. The practice is first and foremost intended to—and in fact does—substantially reduce the size of the CFR. But it also furthers important, substantive regulatory policies, enabling agencies to draw on the expertise and resources of private sector standard developers to serve the public interest. Incorporation by reference allows agencies to give effect to a strong federal policy, embodied in the National Technology Transfer and Advancement Act of 1995 and OMB Circular A-119, in favor of agency use of voluntary consensus standards. This federal policy benefits the public, private industry, and standard developers.[13] | ” |
| —Administrative Conference of the United States, "Incorporation by Reference" (2011)[8] | ||
Examples
The following examples from the Office of the Federal Register's Incorporation by Reference Handbook demonstrate the use of incorporation by reference in the preamble of a proposed or final rule:[14]
Example 1: Reasonable availability of incorporation by reference material
| " | [T]he American Petroleum Institute (API), provides free online public access to view read only copies
of its key industry standards, including a broad range of technical standards. All API standards that are safety-related and that are incorporated into Federal regulations are available to the public for free viewing online in the Incorporation by Reference Reading Room on API's website at: http://publications.api.org. In addition to the free online availability of these standards for viewing on API's website, hardcopies and printable versions are available for purchase from API. The API website address to purchase standards is: http://www.api.org/publications-standards-and-statistics/publications/government-cited-safety-documents.[14][13] |
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Example 2: Incorporation by reference summary
| " | API RP 14H, Recommended Practice for Installation, Maintenance and Repair of Surface Safety
Valves and Underwater Safety Valves Offshore was withdrawn by API and superseded by API STD 6AV2—Installation, Maintenance, and Repair of Surface Safety Valves and Underwater Safety Valves Offshore. API STD 6AV2, first edition 2014 revises and supersedes API Recommended Practice 14H, Fifth Edition 2007. API STD 6AV2 provides practices for installing and maintaining SSVs and USVs used or intended to be used as part of a safety system, as defined by documents such as API Recommended Practice 14C. The standard includes provisions for conducting inspections, installations, and maintenance, field and off-site repair. Other provisions address testing procedures, acceptance criteria, failure reporting, and documentation. Significant changes include updated definitions; new provisions for qualified personnel; documentation, test procedures and acceptance criteria for post-installation and post-field repair, and offsite repair and remanufacture alignment to API 6A.[14][13] |
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Example 3: Reasonable availability with incorporation by reference summary elsewhere in preamble
| " | Section 1237.2 of the final rule provides that booster seats must comply with applicable sections of ASTM F2640-18. The OFR has regulations concerning incorporation by reference. 1 CFR part 51. These regulations require that, for a final rule, agencies must discuss in the preamble to the rule the way in which materials that the agency incorporates by reference are reasonably available to interested persons, and how interested parties can obtain the materials. Additionally, the preamble to the rule must summarize the material. 1 CFR 51.5(b).
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See also
- Rulemaking
- Administrative Conference of the United States
- Code of Federal Regulations
- Federal Register
External links
- "Incorporation by Reference," Administrative Conference of the United States (Recommendation 2011-5)
- Final rule on "Incorporation by Reference," Office of the Federal Register (2014)
- Search Google News for this topic
Footnotes
- ↑ Merriam-Webster, "Incorporation by reference," accessed October 9, 2017
- ↑ Legal Information Institute, "Doctrine of Incorporation by Reference," accessed October 9, 2017
- ↑ Gallet Dreyer & Berkey, LLP, "Incorporation By Reference: Does It Work?" February 11, 2016
- ↑ West's Encyclopedia of American Law, edition 2, "Incorporation by Reference," 2008
- ↑ US Legal, "Incorporate by Reference Law and Legal Definition," accessed October 9, 2017
- ↑ Thomson Reuters Practical Law, "Incorporation by Reference," accessed October 9, 2017
- ↑ 7.0 7.1 Public Contracting Institute, "Incorporation by Reference," May 10, 2017
- ↑ 8.0 8.1 8.2 8.3 Administrative Conference of the United States, "Incorporation by Reference (Recommendation 2011-5)," December 8, 2011
- ↑ 9.0 9.1 9.2 9.3 National Archives and Records Administration, "Code of Federal Regulations Incorporation by Reference," accessed October 9, 2017
- ↑ 10.0 10.1 10.2 Federal Aviation Administration, "Airworthiness Directives (ADs): Incorporation by Reference," September 30, 2015
- ↑ Administrative Conference of the United States, "Incorporation by Reference," accessed October 10, 2017
- ↑ Federal Aviation Administration, "Airworthiness Directives (ADs): Current Only," February 8, 2017
- ↑ 13.0 13.1 13.2 13.3 13.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 14.0 14.1 14.2 14.3 Office of the Federal Register, "IBR Handbook," July 2018
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