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SBA Invitation to Regulatory Roundtable on Incorporation by Reference

Wednesday, April 25, 2012  
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The Office of Advocacy will host a Small Business Roundtable on Wednesday, May 9, 2012 from 2:00 p.m. until 4:00 p.m. to discuss the issue of "Incorporation By Reference” and its potential impact on small business. The Office of Advocacy is particularly interested in obtaining small business input on: 1) how standard setting bodies operate, 2) whether small business interests are adequately represented, and 3) whether small business is somehow disadvantaged when private standards are incorporated into federal regulations by reference. Advocacy’s Small Business Roundtable will be held in the Eisenhower (2nd Floor) Conference Room here at the SBA Office of Advocacy, 409 Third Street, SW, Washington, DC.

According to the Office of Advocacy, Incorporation By Reference is a potentially valuable tool for federal agencies to reduce the time and effort needed to engage in rulemaking. However, there are potential concerns with the practice beyond the issue of "reasonably available,” such as whether the standard setting processes themselves are sufficiently representative, open, and transparent.

Background on "Incorporation By Reference”: Incorporation By Reference refers to federal agencies adopting private consensus standards published elsewhere into their federal regulations. The National Technology Transfer Act Advancement Act (NTTAA) (see, http://standards.gov/nttaa.cfm) encourages federal agencies to use Incorporation By Reference, and the Office of Management and Budget (OMB) has issued implementing guidance in the form of OMB Circular A-119 (see, http://www.whitehouse.gov/omb/circulars_a119), which addresses a number of important issues associated with this practice.

The Administrative Conference of the United States (ACUS) recently adopted a "Recommendation” on the issue of "Incorporation By Reference” (see, http://www.acus.gov/acus-recommendations/incorporation-by-reference/). During ACUS’ discussion of Incorporation By Reference, one of the key issues considered was that of standard setting bodies changing a fee for access to their standards (which are frequently copyrighted materials), even when these standards are being incorporated into federal regulation. Office of Federal Register regulations require that materials incorporated by reference be "reasonable available” to the public, although that term is not defined.

Following the adoption of ACUS’ Recommendation on Incorporation By Reference, a group of legal scholars associated with ACUS, concerned about the public "having to pay to know what the law is,” petitioned the Office of the Federal Register to define the term "reasonably available.” The Office of Federal Register published the petition for public comment in the Federal Register on February 27, 2012 (see, http://www.gpo.gov/fdsys/pkg/FR-2012-02-27/pdf/2012-4399.pdf) , and subsequently extended the comment period until June 1, 2012 (see, http://www.gpo.gov/fdsys/pkg/FR-2012-02-27/pdf/2012-4399.pdf).

To Attend: If you would like to attend the Small Business Roundtable on Incorporation By Reference on May 9th, please RSVP to me by reply email.To Bruce Lundegren, Assistant Chief Counsel, Office of Advocacy at bruce.lundegren@sba.gov. (A call in option will also be available upon request.) A final Agenda for the Roundtable will be developed and circulated prior to the meeting.

Questions: Please feel free to contact Assistant Chief Counsel Lundegren if you have any questions or require additional information.


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