Incorporation by reference in an open-government age.

• Author: Bremer, Emily S.
• Position: Introduction through I. Background, p. 131-153

INTRODUCTION I. BACKGROUND A. Context: The Public-Private Partnership in Standards B. Process: The Role of the Office of the Federal Register C. Regulatory Uses of Incorporation by Reference 1. Types of Incorporated Materials 2. The Role of Federal Standards Policy 3. The Current State of Standards in Regulation 4. Emerging Issues with Incorporation by Reference II. THE PUBLIC ACCESS PROBLEM A. Threshold Questions 1. To Whom Must Materials Be Reasonably Available? 2. Which Agency Should Ensure Reasonable Availability? B. Evaluating Copyright Claims 1. Fair Use a. The Purpose and Character of the Infringing Use b. The Nature of the Copyrighted Work c. The Amount and Substantiality of the Portion Used d. Market Impact e. The Limited Usefulness of Fair Use to Increase the Availability of Incorporated Materials 2. Public Domain 3. Merger Doctrine C. An Emerging Public Policy Dispute D. Tools to Expand Availability E. Collaborating to Ensure Reasonable Availability III. THE CHALLENGE OF UPDATING INCORPORATIONS BY REFERENCE A. Legal Prohibitions on Dynamic Incorporations B. Technical Amendments to Update Access Information C. Agency Practices That Can Facilitate Updating D. Confining Standards to Appendices and Guidance E. Equivalency Determinations and Enforcement Discretion F. Direct Final Rulemaking G. Statutory Solutions IV. PROCEDURAL AND DRAFTING ISSUES A. Identifying Materials Appropriate for Incorporation B. Standardizing Language and Formatting C. Determining the Legal Effect of Secondary References D. Addressing Potential Conflicts E. Securing Timely Approval from the Office of the Federal Register F. Making the Process Work Better CONCLUSION INTRODUCTION

The time has come to reevaluate incorporation by reference, a little known but frequently used regulatory practice with profound public policy implications. To give a regulation legal effect, an agency must publish it in the Federal Register for codification in the Code of Federal Regulations (CFR). (1) As a centralized depository of regulatory commands, the CFR provides citizens with actual notice of legal requirements. In this context, incorporation by reference is a term of art for the practice of codifying material published elsewhere by simply referring to it in the text of a regulation. It is permitted only if the incorporated material is "reasonably available to the class of persons affected" and the promulgating agency secures the "approval of the Director of the Federal Register." (2) The legal effect is that the material is treated as if it were set out fully in fine regulation. (3)

Originally intended to reduce the size and improve the readability of the CFR, (4) incorporation by reference has taken on greater significance as the government has embraced the use of voluntary consensus standards in federal regulations. Voluntary consensus standards are technical standards (5) developed by private sector organizations using an open process that respects due process, includes an appeals process, and results in a consensus among participants representing a balance of interests. (6) In the 1970s, federal policy began to prefer that agencies use such standards in regulations instead of creating "government-unique" standards. (7) This policy, now codified in statute (8) and executive directive, (9) allows agencies and the public to reap the significant benefits of collaborative governance through a public-private partnership in standards. (10)

In large part due to this federal standards policy, the CFR today contains over 9,500 incorporations by reference of standards. (11) Many other kinds of materials aside from standards are also incorporated by reference, including government documents and technical publications from nongovernmental sources. The Office of the Federal Register (OFR) roughly and informally estimates that if all incorporated materials were printed out fully, the CFR would be six or seven times its current length. (12)

Despite its ubiquitous use, incorporation by reference in federal regulations has, until now, escaped scholarly examination. (13) Over the years, common issues with the practice have emerged, and individual agencies have labored independently to find solutions. This Article shines a light on the important policy implications of incorporation by reference in a world transformed by open government. It brings together the experiences of various regulatory agencies with the goal of identifying best practices that can improve incorporation by reference.

The greatest challenge of incorporation by reference is that it can erect a barrier impeding access to the law, sometimes even requiring one to pay a private party to see the full text of a final or proposed regulation. This unfortunate consequence arises when the incorporated material is copyrighted, as is often the case with voluntary consensus standards. The traditional solution has been to require OFR and promulgating agencies to keep copies of incorporated materials available for public inspection in agency offices, but this solution is inadequate in an age of open government. Today, widespread use of the Internet, combined with e-rulemaking initiatives and pushes for greater transparency in government, have raised expectations regarding the accessibility of agency processes and regulations. (14) From this perspective, the public access problem posed by incorporation by reference is particularly acute during rulemaking. Because public inspection requirements are not triggered until a rule is final, interested parties may have to buy a copy of a standard that an agency is considering incorporating by reference to meaningfully comment on the proposed rule.

The problem is particularly challenging because the obvious solutions are not workable. One solution would be to avoid incorporation by reference and simply print the extrinsic material in full in the text of the Notice of Proposed Rulemaking (NPRM) or final regulation. Another option would be to post the incorporated material in a location that is easy to find on the agency's website. If the material is copyrighted, however, these options are unavailable without the consent of the copyright owner. Buying out the copyright is often prohibitively expensive for a federal agency, particularly in these times of budget austerity. More aggressive solutions, such as abrogating copyright or requiring a waiver of copyright as a condition on incorporation, are likely to undermine the highly valuable public-private partnership in standards.

This Article proposes a collaborative solution to incorporation by reference's public access problem. Some agencies have successfully worked with standard developers to improve access to standards both during rulemaking and following promulgation. Technological tools such as read-only capability can provide ways to make the text of a standard broadly available to the public while retaining the value of the copyright to...