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IV.C. How Do I Format Regulatory Text that Contains an IBR?

(Chapter IV. Rulemaking Documents)

C.1. Advance notices of proposed rulemaking

We review IBR language set out in the amendatory text section in ANPRMs if you have included such text. If you include IBR language in your ANPRM, follow the drafting procedures described in section C.3, below. 

C.2. Proposed Rules

We review specific IBR language set out in the amendatory text section of proposed rules, or in supplemental proposed rules, if you have included such text. If you include IBR language in your proposed rule, follow the drafting procedures described in section C.3, below.

C.3. Final Rules

Formatting the IBR language in your amendatory text depends on how many publications are referenced in the same section and whether or not the part (or subpart) has (or needs) a centralized IBR structure. Regardless of the number of publications, if a section is within a CFR part or subpart covered by a centralized IBR section, you must use that section. The three possible structures (see Flowchart 4 and Flowchart 5 in Appendix A.B.2 of this handbook):

  1. Option 1: Single IBR publication section – a single publication is incorporated into a single section, but can be referenced once or multiple times within that section. Place the required IBR language immediately after the first reference to the publication or in the last paragraph in the section (see Boilerplate 2 -Final rule, Multiple currently-approved publications in Appendix A.C and Option 1 in Appendix A.D.3 of this handbook);
  2. Option 2: Dedicated IBR paragraph – more than one publication is incorporated into a single paragraph. Include the IBR language for each publication referenced in a section in a designated paragraph in that section; the paragraph should be the first[1] or last paragraph in the section (see Option 2 in Appendix A.C. and Option 2 in Appendix A.D.3 of this handbook); or
  3. Option 3: Centralized IBR section – a designated section that serves as an index for all the IBR material in or across an identified CFR unit(s), regardless of quantity. Include a cross-reference to a separate section designated for IBR material immediately after the first reference and add the IBR language for the publication into the centralized IBR section; the centralized section should be at the beginning or the end of the applicable part[2] or subpart (see Option 3 in Appendix A.C and Option 3 in Appendix A.D.3 of this handbook).

[1] The OFR prefers that you include dedicated IBR paragraphs as paragraph (a); however, we recognize that many times it is simpler and more efficient to add the dedicated paragraph as the last paragraph – especially when adding the paragraph to an existing section.

[2] A centralized section that spans multiple parts is possible only under very limited circumstances.  Before adopting a multi-part model, contact us.

Accordion

Even though each rulemaking is unique and the circumstances driving the rulemaking will help determine which publication(s) to use, the structure you use depends on your existing CFR content and IBR structure (if any), as well as any future plans or possible future outcomes.  Before you begin drafting, determine (see Flowchart 4. and Flowchart 5 in Appendix A.B.2 of this handbook):

  1. Whether you are including (and how many) new IBR publications in the rulemaking;
  2. Whether you are including (and how many) currently-approved IBR publications in the rulemaking;
  3. The number of publications you are incorporating within each affected section; and
  4. The IBR structure that works best from the options available[3].

Make sure you understand how the section fits into the CFR structure.  For example, if a section already has one publication and you are adding a second publication, then even if you only have one publication in the rule, you cannot use the Single IBR publication section option (option 1) because the end result is more than one publication in the section. If this happens, you will have to restructure the section.

Remember: Option 3 is always acceptable but you may have to consolidate existing IBR material from other sections in the part or subpart when adding a centralized IBR section to a part that already has incorporated material.

[3] If the rule amends more than one part, choose one structure for each part.  The end result may be different structures in different parts.

 

The only structural difference between option 2 (Dedicated IBR paragraph) structure requirements and option 3 (Centralized IBR section) structure requirements is that option 2 starts at the second paragraph level (e.g. (a)(1)) while option 3 starts at the first paragraph level (e.g. (a)).

  1. (Option 1) Using a single paragraph for the reference and all elements (see Boilerplate 2 -Final rule, Multiple currently-approved publication in Appendix A.C and Option 1 in Appendix A.D.3 of this handbook) Include the IBR approval language, availability boilerplate, and information about the publication and publisher, immediately following the first reference to the material or as the last paragraph of the section.
  2. (Option 2) Using a dedicated IBR paragraph (see Option 2 in Appendix A.C. and Option 2 in Appendix A.D.3 of this handbook). When including the IBR approval language for more than one publication in a separate paragraph, the paragraph must be either the first or last paragraph within the section and must contain all the elements described below for Option 3, except for 3c. (since there are no outlying sections).
  3. (Option 3) Using a centralized IBR section (see Option 3 in Appendix A.C. and Option 3 in Appendix A.D.3 of this handbook). A centralized IBR section allows you to publish the IBR approval language and list the publisher information once for a part instead of repeating it in each section, and does not interfere with the regulatory text of any individual section.
    1. A centralized IBR section must contain the following:
      1. Required approval language in the first paragraph;
      2. Required availability boilerplate; and
      3. Required information for each publisher and each publication by:
        1. Listing each publisher along with its address information in 1st level paragraphs (e.g. (a)) in alphabetical order. Include at least two (2) of the following elements in addition to the publisher’s address: phone, email, website.
        2. Listing the publisher’s incorporated publications separately in 2nd level paragraphs (e.g. (a)(1)) under the publisher’s information paragraph in alpha-numeric order (see Option 3 in Appendix A.C. and Option 3 in Appendix A.D.3 of this handbook).
        3. ).  For each separate paragraph include:            
          1. The description of each publication as required by 1 CFR 51.9(b)(2) (see Example 1-1 and Example 1-2); and
          2. All sections that require the use of each publication, including the first paragraph level of the section.
             
    2. A centralized IBR section only contains information related to the incorporated publications.  It does not contain instructions for using the material, the process the agency follows to change the publications, alternatives to using the incorporated publications, or other information unrelated to identifying the incorporated publications or the availability of that material.
    3. The sections that require use of the publication(s) must include the following phrase after the publication’s designation, “(incorporated by reference, see [INSERT THE CENTRALIZED IBR SECTION NUMBER])”.  The cross-reference back to the centralized IBR section allows the reader to find the approval language and information regarding the publication’s publisher quickly.

A poorly drafted centralized IBR section may create problems for you.  It can be difficult to amend, especially if the centralized IBR section and the section that requires the use of the publication do not cross-reference each other. Contact us if you have questions about how to craft a well-drafted centralized IBR section.

Examples

 Accordion

The designation is at the top of the title page and in the header of the standard.  The approval date is in footnote 1.

Proper citation: ASTM D4809-13, Standard Test Method for Heat of Combustion Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision Method), approved May 1, 2013.

Document header and footer of title page of ASTM D4809-13, including title and footnote 1

The designation and type of date are at the top of the title page and in the header of the standard.

Proper citation: SAE J1634, Electric Vehicle Energy Consumption and Range Test Procedure, Cancelled October 2002.

The designation and type of date are at the top of the title page and in the header of the standard.

Accordion

 

New material only
DATES: This rule is effective March 30, 2018. The incorporation by reference of certain material listed in this rule is approved by the Director of the Federal Register as of March 30, 2018.

Existing material only
DATES: This rule is effective March 30, 2018. The incorporation by reference of certain material listed in this rule was approved by the Director of the Federal Register as of June 6, 2008 and August 16, 2012.

Combination of new and currently-approved material
DATES: This rule is effective [INSERT DATE 90 DAYS AFTER PUBLICATION in the FEDERAL REGISTER].  The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of [INSERT DATE 90 DAYS AFTER PUBLICATION in the FEDERAL REGISTER]. The incorporation by reference of certain other material listed in the rule was approved by the Director of the Federal Register as of July 3, 2017.

 

 

…the 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: https://publications.api.org.[2] 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: www.api.org/​publications-standards-and-statistics/​publications/​government-cited-safety-documents.

 

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.

 

VIII.    Incorporation by Reference

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).

In accordance with the OFR’s requirements, the discussion in section IV of this preamble summarizes the required provisions of ASTM F2640-18.  Interested persons may purchase a copy of ASTM F2640-18 from ASTM, either through ASTM’s website, or by mail at the address provided in the rule.  A copy of the standard may also be inspected at the CPSC’s Office of the Secretary, U.S. Consumer Product Safety Commission.  Note that the Commission and ASTM arranged for commenters to have “read-only” access to ASTM F2640-17 ε1 during the NPR’s comment period.

 

 

 

Multiple currently-approved publications

The following standards appear in the amendatory text of this document and have already been approved for the locations in which they appear: ASTM D 4359, CGA TB-25, ISO 6406:2005(E), and ISO 16148:2016(E). No changes are proposed to the IBR material.

Single currently-approved publication

AS/NZ 4474.1:2007 is referenced in the amendatory text of this document but has already been approved for appendix A. No changes are proposed to the IBR material.

 

 

Multiple currently-approved publications

The following standards appear in the amendatory text of this document and were previously approved for the locations in which they appear: ASTM D 4359, CGA TB-25, ISO 6406:2005(E), and ISO 16148:2016(E).

Single currently-approved publication

AS/NZ 4474.1:2007 is referenced in the amendatory text of this document but was previously approved for appendix A.

 

 

 

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