Federal agencies must guarantee that all regulatory provisions are fully, publicly available.
Federal agencies have relied upon private sector expertise and resources by incorporating thousands of private standards into binding public regulations – but only by reference. Examples include water sampling protocols, bike helmet safety standards, and lists of medications for which Medicare will cover off-label uses. These incorporated-by-reference (IBR) rules use text written by numerous private standards development organizations (SDOs), ranging from the American Public Health Association to the American Petroleum Institute.
Rather than openly sharing the incorporated text with the public, regulating agencies refer readers to the private organizations to obtain the incorporated rules. The SDO typically asserts copyright and charges significant access fees, ranging from $30 to $3,000. Interested members of the public may obtain the private standards from the Office of the Federal Register (OFR) – but only by visiting its reading room in Washington, D.C.
Agency use of IBR rules likely will only increase, since agencies save money when SDOs write the rules. The result: in this age of open government, significant public regulations will remain difficult to find and expensive to read. This contrasts sharply with the widespread, free availability of federal statutes and all other federal regulations in depository libraries nationwide and over the internet.
The Freedom of Information Act (FOIA) requires that any incorporated regulatory text be “reasonably available” to those affected, but OFR seems to approve agency IBR rules without public assurances of reasonable availability. IBR rules can be expensive by any measure, and some are no longer available through SDOs at all. Others, such as some issued by the American Society for Testing and Materials and the American Petroleum Institute, may be freely available online, but only on a read-only basis, significantly limiting a reader’s ability to quote, discuss, or use the standards. Moreover, the SDOs have reserved their right to revoke access altogether and conditioned access on readers’ waiving objections to copyright claims.
Presently pending before the OFR is a petition filed by Professor Peter Strauss and signed by numerous administrative law scholars (including myself) that seeks assurance of full public access to incorporated text prior to IBR rule approval. Meanwhile, the Office of Management and Budget (OMB) has sought public comment on whether to reconsider Circular A-119, its policy encouraging agencies to use voluntary consensus standards. Congress has endorsed agency use of voluntary consensus standards generally, although after an SDO reportedly tried to charge Congressional staff $1,195 for access to them, Congress also barred agency incorporation of pipeline safety standards unless they are freely, publicly available.
Commentators have considered whether SDOs can maintain copyright in IBR rules and have discussed ways to pay for agency use of private standards, which all agree have value. For example, Professor Peter Strauss has argued that agencies should pay SDOs for standards they incorporate. Administrative Conference of the United States (ACUS) staff attorney Emily Bremer has suggested that agencies seek moderation of the prices charged by SDOs.
Federal IBR rules raise a broader question: Why, in a democracy, does law need to be public? Legal scholarship and due process doctrine have traditionally focused on notice – specifically, whether those who must comply can learn what is required. IBR rules can fail to supply notice of this sort. Regulated entities from truckers to architects have commented that the prices of IBR rules impede both learning and compliance.
Law also needs to be readily, publicly available for several other reasons. First, beneficiaries of regulatory statutes – not just regulated entities – need notice. Take consumers, neighbors to natural gas pipelines, and Medicare beneficiaries, who are all affected by IBR rules. Depending on the details of the rules, these individuals might buy products, choose medical treatments, move into a community, or not. As one individual told OFR, “I don’t have to follow any laws about the design of airbags, but I have a right to know against what standards they are evaluated.”
Second, the text of standards must be fully public to ensure agency accountability. Issuing binding regulatory standards is a central, long-lasting, and broadly-applicable governmental action distributing both benefits and burdens. Agencies must be accountable to citizens for making these quasi-legislative decisions in a reasoned, democratically responsive manner, consistent with the law. Ready public access is critical for accountability, whether interested parties seek it through comment to an agency, judicial review, congressional action, voting, or public discussion.
The need for full public access is sharpened, given the distinctive public-private collaboration inherent in IBR rules. Unlike government agencies, private SDOs are not obligated to implement federal statutes, and their processes also may be far more closed. Even SDOs formally committed to deliberative processes have been criticized as dominated by large regulated entities and for effectively requiring participants to “pay to play.” A regulatory agency’s additional use of notice-and-comment rulemaking is unlikely to fill the participation gap. The public may still have to pay to read the proposed standard and obtain underlying data from the SDO. Furthermore, agencies might consider use of IBR rules to minimize hassles from political overseers. In Congress and the White House, the same regulated entities that make up SDOs may be very well represented. All this may subtly prompt agencies to choose private standards, even if they are less than ideal from the standpoint of the public interest. It is not that agency-written standards are generally superior – they have their own pitfalls. But in this joint public-private regulatory setting, accountability demands full public access.
Certainly, IBR rules are not secret. They might even be considered formally “available.” But they are hard to find, and for anyone living outside Washington, D.C., not typically free. Their prices obstruct access, particularly for small entities and individuals. One could say that the prices pale next to costs, like legal fees, that can accompany lawsuits challenging agency rules. But readers also need access to the text of standards to inform compliance decisions, purchases, medical choices, letters to Congress or agencies, and voting. None of these are necessarily costly activities; prices for IBR rules accordingly represent a distinct obstacle.
Moreover, the federal adoption of hard-to-find, costly IBR rules sends a damaging message. That message is intrinsically hostile to the concept that a democratic government must govern publicly. The United States has a long and constitutive tradition of free, widespread public access to binding law. Our tradition resembles our history of ensuring free access to polls, including our fundamental opposition to seemingly trivial poll taxes. Agency adoption of IBR rules communicates that the democratic process is beside the point; it suggests that government mainly needs to be accountable to businesses and individuals of means. Moreover, the extent of private control over public law, including the apparent power to set prices and even to curtail access, may prompt cynicism about government and undermine the meaningfulness of citizen participation and voting.
Decision makers should carefully consider the full value of public access to binding law in any effort to reform agency use of IBR rules. Whether agencies negotiate or pay for licenses of IBR standards or find another approach, they must ensure that all binding regulatory law remains fully accessible to the public at large – easy to locate and free of charge.
This essay is part of a three-part series, entitled Regulating by Reference.