Private control over access to the law: the perplexing federal regulatory use of private standards.

• Author: Mendelson, Nina A.
• Position: II. Does Law Need to Be Public? through Conclusion: On Public Access, with footnotes, p. 762-807

2. DOES LAW NEED TO BE PUBLIC?

   The IBR situation runs afoul of a widely shared intuition--that law created by the federal government needs to be public. The rules are not secret, but unlike other binding federal law, they are expensive to access and difficult to find. The lack of access raises important issues about transparency. To be sure, public access issues around IBR rules have been less of a focal point compared with public access to a range of less broadly applicable, but more captivating, governmental decisions: say, whether and whom to wiretap or whether drone strikes can be used abroad (or domestically) to target American citizens who are suspected terrorists. Meanwhile, proponents of IBR have suggested that, despite the lack of access, it saves agencies significant resources to use these rules, and (perhaps unlike wiretapping decisions) some citizens may not see them as terribly interesting or important because they are "technical." (143)

   In the IBR setting, we have spent comparatively little time assessing why duly promulgated federal rules might need to be readily accessible to the public. Examining the extent of public access to IBR rules can supply some further insights into the arguments about why law needs to be accessible to the public. And the issue may matter immediately for several reasons.

   First, it could matter for purposes of legal reform by Congress, the executive branch, or the judiciary. Congress could, as it has with the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, (144) simply state that all materials incorporated into federal rules must be available to the public for free, or it could expressly address the copyright and public access issues in another way. (145)

   Similarly, fully assessing why law needs to be public could affect executive reform decisions. As noted, the OFR is proposing to revise its IBR rules. (146) And the OMB has indicated that it may consider revising Circular No. A-119. (147) Meanwhile, individual agencies could change their incorporation practices.

   Further, IBR rules could face legal challenges under the APA and the FOIA. For example, one could argue that agency utilization of material for which SDOs charge access fees violates the FOIA's statutory requirement that incorporated materials be reasonably available to the "class of persons affected." (148) The term "affected" could be broadly construed to include more than just those tasked with compliance. (149) And any reasonable sense of the words "persons affected" would seem to encompass, depending on the subject area, large groups of consumers, employees in hazardous workplaces, Medicare beneficiaries, and neighbors of natural gas pipelines. (150) For such "affected" persons, the access fees charged may present a barrier that is far from "reasonable." The thousands of IBR standards are wide ranging in subject and quasi-legislative in character. Yet, the only access is typically through travel to the Washington, D.C., OFR reading room or what SDOs elect to provide.

   A court might also hear arguments that a federal rule with incorporated private material for which access fees are charged violates the APA. The APA requires that an "interested person[]" be able to comment on a proposed rule. (151) Commenting is difficult, at best, when the text of the proposed rule is subject to a significant access fee. The APA also requires agencies to afford any "interested person" the right to petition to revise, repeal, or issue a rule. (152) That SDOs are permitted to charge significant access fees similarly impedes the statutory right to petition. Finally, SDO decisions to cease publishing standards that are incorporated by reference into federal rules would seem to amount to de facto regulatory repeal, in violation of the APA's requirements that notice-and-comment procedures accompany repeal or amendment of a federal rule. (153) Again, a more thorough understanding of the reasons for public access to the law might affect the way a court interprets and applies the APA.

   A fuller understanding of the importance of ready public access to law might also be relevant to a judicial assessment of whether Congress granted the OFR the authority to interpret the APA in a way that raises arguable constitutional issues--namely, by interfering with fair notice for individuals or small businesses lacking the resources to access standards, (154) by impeding public criticism of governmental actions, (155) or by adopting a system that differentiates between citizens based on wealth. (156) And finally, a more thorough assessment of the importance of ensuring meaningful access to federal rules could affect our approach, more generally, to governmental transparency.

   I accordingly turn to a brief history of public access to U.S. laws, followed by an assessment of the values served by public access to these laws.

   1. The Establishment of Public Access to Statutes and Regulations

      Since at least 1795, the U.S. tradition has been to provide inexpensive and widespread public access to the law. Prior to 1795, at least three newspapers in each state were responsible for printing authentic copies of laws and regulations. (157) Access to laws through the newspapers was not free, although subscription charges were reportedly low. (158) Moreover, through the 1792 Post Office Act, Congress provided for newspapers to be carried in the mail at rates far lower than for letters, specifically for "the diffusion of knowledge," including public information. (159)

      Although publication in newspapers might be understood to effectuate a fairly wide distribution of the contents of the law--and federal utilization of private publishers was probably less expensive than governmental publication--by 1795, Congress decided to stop relying on newspapers to apprise the public of the law's contents. Instead, Congress took on the distribution of the laws as a public function, including providing the public with free access through libraries. (160) Of course, Congress did not, and still does not, require distribution of a free set of laws to each citizen. But beginning in 1795, the House and Senate agreed that "more general promulgation of the laws of the United States" was appropriate. (161) As a result, Congress enacted legislation requiring that a complete edition of the laws to date, the Constitution, and current treaties, as well as newly enacted laws, be printed under the direction of the secretary of state and distributed to "each State or Territory." The texts would be deposited in "fixed and convenient places in each county or subordinate civil division," as the state government might judge "most conducive to the general information of the people." (162) This development coincided with a general increase in the number of libraries. (163) And by 1859, Congress had provided for the permanent retention of governmental publications by libraries and other designated depositories. (164) The Statutes at Large, for example, were to be distributed to "State and Territorial libraries and to designated depositories." (165)

      In the 1930s, with an upsurge of rules, particularly the large volume of New Deal rules under the National Industrial Recovery Act, Congress recognized that administrative rules, unlike the Statutes at Large and the U.S. Code, were being published in a fashion that was disorganized and ad hoc at best, although the rules possessed the force of law and "the property and persons of the citizens may be at stake." (166) As the Federal Register Act legislative history describes, Harvard Law professor (later dean) Erwin Griswold helped identify the problem and devise a solution. (167) By that time, there had even been litigation in which the government brought an action to enforce a regulatory requirement that turned out not to exist. (168)

      Congress accordingly formally expanded the publication regime to include federal agency rules beginning in 1936. Federal Register sets, as well as the CFR, are now maintained by depository libraries. Congress has repeatedly acted to expand public access to agency rules and other documents. For example, Congress expanded the publication regime to provide for free digital access at the approximately 1,200 governmental depository libraries for all federal statutes and regulations. (169) Congress went further in 1993, requiring the Government Printing Office to make universal online access to statutes and regulations available, defining recoverable costs as the "incremental cost of dissemination," (170) a very small charge per user in the information age, (171) and a charge barred, in any event, at depository libraries. Perhaps unsurprisingly, therefore, the Government Printing Office has elected not to impose any costs at all. (172)

      In 1996, in the Electronic Freedom of Information Act Amendments, Congress required agencies to make available, by "electronic means," indices of records that have been released to the public under the FOIA, and, for records created beginning late in 1996, the records themselves. (173) Congress's express purpose was to "improve public access to agency records and information" and to "foster democracy by ensuring public access to agency records and information." (174) And in 2002, in the e-Government Act, Congress required agencies to provide for electronic rulemaking and electronic rulemaking dockets and to post on their websites a wide range of materials, with the express purposes of "increas[ing] access, accountability, and transparency" and "enhancing] public participation in Government." (175)

      The regular incorporation by reference of private standards into federal regulations predates Congress's move to "enhance free public access to Federal electronic information" (176) but is still a comparatively recent innovation, apparently beginning in the 1970s. (177) The SDOs have also charged for access to their standards, (178) although the size of the charges has not...