Incorporating Private Standards into Public Regulations

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Commentators assess final rule on how agencies incorporate private standards into public regulations.

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Every year, federal administrative agencies in the United States create thousands of new regulations, producing new rules governing public health, homeland security, consumer protection, and civil rights, among other vital issues. Central to the process of creating these administrative rules is a requirement for public notice and an opportunity for public comment. However, debate has recently emerged over agencies’ practice of “incorporation by reference” – that is, a reliance on privately-created standards in crafting public rules – which some have argued conflicts with values of transparency and public participation.

Concern over incorporation by reference arises because incorporated standards are simply referred to in a government rule. To access and read the actual incorporated standards, members of the public are must either purchase the private standard or travel to Washington, D.C., to read the private standards in a government office.

By law, the Office of the Federal Register’s (OFR) is responsible for reviewing other government agencies’ incorporated standards. Responding to concerns over incorporation, OFR recently issued rule addressing the practice. The Regulatory Review is pleased to publish this three-part series on the OFR’s new rule.

Incorporation by reference has been said to serve a valuable purpose. It can enable federal administrative agencies to capitalize on industry expertise by referencing standards developed by private organizations and incorporating them into government binding regulation.

The problem is that the content of these standards, although legally binding once incorporated into government rules, can remain privately copyrighted, limiting the government’s ability to publish them and hindering the public’s ability to know what the law is. If ignorance of the law excuses no one, one may well wonder: “What if the public cannot access or consult a particular law?”

Effective this month, the OFR’s new rule amends the current incorporation by reference process and attempts to increase public availability or awareness of incorporated material. The OFR’s rule requires that agencies attempting to incorporate materials by reference add more information about the incorporated standards into the Federal Register notices accompanying their proposed and final rules. Under the new OFR rule, agencies must provide full summaries of the incorporated materials and discuss the steps they took to ensure that the materials are “reasonably available” to interested parties. Further, OFR’s new rule encourages agencies to work with copyright holders to increase public access.

In two previous series on The Regulatory Review, commentators debated the value and shortcomings of incorporation by reference. Our initial series, Regulating by Reference, responded to the reality that “some legally binding rules also originate within private organizations – not the government.” In The Continuing Debate Over Regulatory Incorporation, commentators discussed the OFR’s initial response to the petition that prompted the office to reform its incorporation by reference policies and which resulted in the OFR’s new rule. The Regulatory Review is now excited to publish three new essays commenting on the OFR’s recently issued rule.

We Decline to Define ‘Reasonably Available’

January 26, 2015  |  Peter L. Strauss

The new OFR rules leave unaddressed a number of important issues. They continue to permit incorporation by reference to endure without time limit and pay no attention to the terms and price at which the adopting private organizations offer the incorporated standards for sale.

New Rules on Incorporated Standards Encourage Necessary Public-Private Collaboration

January 27, 2015  |  Emily S. Bremer

The public’s right to access must be balanced with private entities’ intellectual property rights, and this balance must be struck without undermining the valuable aspects of the nation’s public-private partnership in standards-setting.

Public Access to the Law Must Be Taken More Seriously

January 28, 2015  |  Nina Mendelson

The Office of the Federal Register has missed an opportunity to ensure meaningful public access to over 9,000 government regulations.