Incorporation by reference in an open-government age.

• Author: Bremer, Emily S.
• Position: II. The Public Access Problem through III. The Challenge of Updating Incorporations By Reference, p. 153-199

2. THE PUBLIC ACCESS PROBLEM

   The greatest challenge presented by incorporation by reference is that it impedes access to the law. In all cases, the practice requires interested parties to find material outside of the CFR in order to view an entire regulation. In some cases, if the incorporated material is copyrighted and sold by a private party, incorporation by reference may even require interested parties to pay to see the law.

   The traditional solution to this public access problem has been to require OFR and promulgating agencies to keep incorporated documents on file for public inspection in agency offices. (98) During the rulemaking stage, this is no solution at all. Materials are not "incorporated by reference," thereby triggering the public inspection requirement, until the final rule is promulgated. (99) Even following promulgation, public inspection is inadequate because it requires interested parties to physically go to an agency office--often located only in Washington, D.C.--to view the law. In the past, this limited availability was considered sufficient, but the burden is intolerable in an era of open government and increasingly ubiquitous use of the Internet.

   An alternative approach would be to avoid incorporation by reference altogether by printing out the text of the extrinsic material verbatim in the text of the regulation. This approach would significantly lengthen the CFR, thereby defeating the original purpose of permitting incorporation by reference. This concern may have less force as the CFR transitions from its traditional print format to an electronic format. (100) However, there are other difficulties with this approach. In some cases, the material may include charts or diagrams that simply do not fit in the CFR. More generally, including lengthy and highly technical materials in the text of a regulation may detract from its readability and clarity. (101) The regulatory standard might easily be lost amid the complexity of the supporting technical standards. Finally, if the material is copyrighted, reprinting it in the text of the regulation may simply not be an option.

   The ideal solution would be for agencies to post incorporated materials online. This is an easy solution for incorporated materials that are not copyrighted. For example, the Federal Communications Commission (FCC) incorporates FAA advisory circulars, (102) and OSHA incorporates certain safety requirements created by other federal agencies. (103) Such documents are generally ineligible for copyright protection because they are authored by the United States government. (104) Other materials, such as the state environmental regulations that EPA incorporates by reference (105) may similarly not be subject to copyright or other legal protections. If an agency incorporates such material by reference, the agency should make a copy of it available electronically in a location where interested parties will be able to find it easily.

   If the incorporated material is copyrighted--as is often the case with voluntary consensus standards--posting it online is more difficult. Although a recent judicial decision, (106) combined with pressure from some scholars, activists, regulated parties, and government officials, (107) have raised questions regarding the strength of copyrights in incorporated standards, federal law and policy requires agencies to respect copyright. Agendes can be liable for copyright infringement (108) and, when using voluntary consensus standards, are required to "observe and protect the rights of the copyright holder and any other similar obligations." (109) In light of these legal principles, some agencies have incorporated by reference for the express purpose of respecting copyright. (110)

   Aggressive approaches--such as changing copyright law, requiring a waiver of rights as a condition of incorporation, or buying out the copyright--are obvious but suboptimal solutions. Standard development is expensive. Most standard developers operate as nonprofit organizations and sell copies of their standards to fund standard-development activities. The alternative is to charge membership fees, but this approach erects barriers to participating in the standard-development process. Large corporations would likely be able to absorb these costs, but small businesses, consumer groups, and public interest organizations would find it difficult to participate in the standard-development process. Thus, forcing standard developers to change their business model would likely reduce the value of the resulting standards to the public and reduce the availability of standards appropriate for regulatory use. Additionally, private standard developers sometimes develop standards at the request of a government agency, saving the agency time and resources. But standard developers would be less inclined to take on such projects if they knew they would not be able to recoup their costs. Finally, buying out the copyright is not only impractical in the current budget climate, but would also eliminate cost reduction as one of the major benefits of federal standards policy. In short, the public-private partnership in standards is both highly beneficial and highly complex and likely would be undermined by an overly aggressive approach to incorporation by reference's public access problem.

   My research revealed a more promising, collaborative solution. In the spirit of public-private partnership, and within the bounds of established federal law and policy, some agencies have worked with standard developers to make standards available electronically during rulemaking and following promulgation. Technological tools, such as read-only functionality, provided mutually agreeable methods for increasing access while protecting copyright. Agencies that reported success with this approach identified a number of factors they consider to determine what degree of access is necessary and how important such access is in relation to other regulatory goals that may be at stake. Replicating this approach in other agencies may increase access while protecting and promoting other regulatory values, including the public-private partnership in standards.

   1. Threshold Questions

      We must first consider two threshold questions: (1) to whom should incorporated materials be "reasonably available"; and (2) should OFR or the promulgating agency take primary responsibility for ensuring reasonable availability?

      1. To Whom Must Materials Be Reasonably Available?

         With respect to the first question, publication requirements historically have focused on ensuring that regulated parties are notified of the regulations with which they must comply. (111) Indeed, courts have consistently held that the law "requires publication of those policies of which the public must be aware in order to conform its conduct to the agency's requirements." (112) This principle finds more specific expression in the statutory requirement that materials incorporated by reference be "reasonably available to the class of persons affected thereby." (113) Such availability is essential to the CFR's notice function. (114) If an agency does not get OFR's approval to incorporate by reference, courts will not allow the agency to enforce the affected regulatory commands. (115)

         Today, the focus should be broader, going beyond regulated parties to include other interested parties and members of the public. Modern administrative law and policy increasingly value public engagement in agency processes and improved access to regulations and supporting documents. E-rulemaking initiatives are perhaps the most prominent, albeit not the only, manifestations of this modern shift in focus. Agencies should bring this broader focus to bear on incorporation by reference by ensuring that incorporated materials are "reasonably available" to regulated and other interested parties.

      2. Which Agency Should Ensure Reasonable Availability?

         A second threshold question is whether OFR or the promulgating agency should be charged with the primary responsibility of ensuring reasonable availability. To be sure, the statute that permits incorporation by reference arguably vests OFR with this responsibility, providing that a "matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register." (116) OFR regulations require reasonable availability as a condition of approval to incorporate. (117) But in practice, OFR enforces the requirement minimally. OFR usually considers it sufficient that the material be available for purchase somewhere, regardless of cost. (118)

         As a practical matter, OFR is poorly situated to enforce a more exacting requirement. (119) As discussed below, (120) a meaningful evaluation of reasonable availability entails considering a wide array of situation-specific facts. Are the regulated parties large corporations or small entities that are more sensitive to cost? What is the overall cost of complying with the regulation and how does the cost of the standard compare to the costs of compliance? What types of parties are likely to need access to the standard during rulemaking and are they likely to be able to bear the cost? Are they likely to already have copies of the standard by virtue of their participation in the standard development process? All of these questions--and others--require subject matter expertise that only the promulgating agency possesses.

         Another difficulty is that OFR is not involved early enough in the process to ensure reasonable availability when it is needed most--during the rulemaking process. Agencies should be concerned about the availability of a standard even before they propose a rule. If there is more than one standard that will suit the agency's regulatory purpose, the agency should consider reasonable availability when choosing among...