Emily Bremer: [0:01] Thank you John. That really says a lot what I was going to say. So I'm going to talk mainly about research and try to keep my remarks brief so we can dive right in to what I expect will be a very interesting discussion. [0:12] As John described, over the past 30 years incorporation by reference has sort of exploded, largely due to agencies' use of voluntary consensus standards pursuant to OMB circular A-119 and the Tech Transfer Act. To give you an idea of this on this database says that there are approximately 9500 incorporations by reference just of standards currently in the code of federal regulations.[0:37] The practice really presents common issues, but all the agencies that incorporate by reference have addressed these issues independently.
[0:47] From my perspective, the goal of the project is really twofold. First, to find out what agencies are doing and compile all that information in a centralized document that any agency that incorporates by reference can look at and learn from. Secondly, to identify best practices that could be included in a recommendation to make the process work better for all the parties who are involved.
[1:09] In order to conduct this research, I did basically four things. I talked to agencies first of all. I talked to about a dozen agencies including non-regulatory agencies that have a key role in this process, including NIST, OMB, and the Office of the Federal Register. I also talked to a wide variety of regulatory agencies who use incorporation by reference for vastly different regulatory purposes. Just a few that were included were CPSC, OSHA, the Coast Guard, FAA and several others.
[1:39] I also conducted interviews with about half a dozen standard development organizations, to get their perspective on this and they were incredibly helpful in giving me their side and their understanding of why this system works the way it does.
[1:53] Next, I spent two days at the Office of the Federal Register with the legal staff who are charged with approving all requests for incorporation by reference. They really gave me a very up close view of how the process works and what its issues are.
[2:07] Lastly, I gave a presentation to the Interagency Committee on Standards Policy in which I gave them a presentation on the project and then sparked a very good dialogue with the standards executives who were in attendance, which included representatives form agencies who were for mainly logistical reasons, not able to more fully participate in my research.
[2:27] One thing I found was very broad consensus among everyone I talked to about what the issues are in incorporation by reference. So I focused on those issues in the report and that's reflected also in the recommendation.
[2:38] First and, of course, I think the most sexy issue would be the public access question. How do you make sure these materials are available to the parties who need to see them, both during the rulemaking process and once the regulation that incorporates them has been adopted.
[2:53] Next, agencies often face challenges updating their regulations when they incorporate by reference. You have to incorporate by reference a specific version of a document and voluntary consensus standards in particular, are frequently revised often on a scale that agencies can't keep up with.
[3:09] Lastly, I looked at procedural and drafting questions. The least fun unless you're a nerd like me, but it turns out there are some very obvious problems and some very obvious fixes there.
[3:20] With respect to the public access question, the one thing I found, and I think John hinted at this, is this is really an emerging problem. By law agencies and the Office of the Federal Register are required on hand a document or a copy of anything that's incorporated by reference for public inspection. And 30 years ago, that was sufficient. But with ubiquitous use of the Internet and pushes for rulemaking and transparency, it's really just no longer adequate.
[3:47] I found a really great variety of where agencies are in mess. Some of them had noticed the problem but hadn't really figured out what to do about it. Others have been very proactive. I'll give one example, the Pipeline and Hazardous Materials Safety Administration in one instance went to a standard developer and arranged with them to make a read-only electronic copy of the standard they were considering in the electronic docket during the course of a rulemaking. Those kinds of technological devices can provide a way for agencies and standard developers to increase access without severely undercutting the market for the standard.
[4:26] With respect to updating, I found a much greater variety in practices and there were reasons for this. In talking to the agencies, I found out what they were. Sometimes you can do direct final rulemaking if you're a hybrid agency that is subject to additional procedural requirements, that might not work. Some agencies use enforcement discretion but they do it different kinds of ways depending on their position vis-à-vis regulated parties.
[4:50] So I think one of the great values of this project is just identifying what the various approaches are, when they work, why the work, and why they fail. One of the things the recommendation includes is a statutory solution that I think would alleviate some of the persistent problems in updating.
[5:07] Finally, on procedural and drafting issues, the one, I think, key thing I found is that some agencies don't have that many problems with the process. Those agencies tended to be the ones that had very good working relationships with the Office of the Federal Register--someone at their agency who was a continuous point of contact with OFR and who had very good knowledge of the processes that the Office of the Federal Register uses to approve incorporations by reference.
[5:35] So I think the recommendation does a lot to highlight these issues and I look forward to the debate on all of them. Thank you.