SBA Invitation to Regulatory Roundtable on Incorporation by Reference
Wednesday, April 25, 2012
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.
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
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.
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.
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 firstname.lastname@example.org.
(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