A Multidimensional Problem

• Date: 01 August 2015

8-2015 NEWS & ANALYSIS 45 ELR 10783

C O M M E N T

A Multidimensional Problem

by Emily S. Bremer

Emily S. Bremer is the Research Chief of the Administrative Conference of the United States. e views expressed here are

those of the author and do not necessarily reect those of the Administrative Conference, its committees, or its members.

Federal agencies often given lega l eect to privately

developed st andards by incorporating them by ref-

erence in regulations. e practice, though obscure,

is longstanding. e provision of the Freedom of Infor-

mation Act (FOIA) that permits the incorporation by

reference of “matter reasonably available to t he class of

persons aected thereby” was enacted in 1966.1 And

agencies’ incorporation by reference of voluntary con-

sensus standards gives eect to a federal standards policy

that emerged in the late 1970s,2 was rst embraced by the

Executive in 1982,3 and was partially codied by Con-

gress in the National Technology Transfer a nd Advance-

ment Act of 1995.4

e diculty is that t he standards are not as freely

available a nd easy to nd as the regulations into which

they are incorpor ated. e private, nonprot or gani za-

tions that develop standard s typically assert copyrig ht to

them and rely on the revenue generated by t heir sale to

fund the standards development process.5 In 2011, the

Admin istrat ive Conferenc e of the United States recom-

mended that agencie s should work with sta ndards devel-

opers and ot her copyright holders a nd use electronic

tools such as read-only acc ess to expand the free online

availability of inc orporated materials.6 e Oce of t he

Federal Re gister (OFR) and the Oce of M anagement

1. 5 U.S.C. §552(a)(1); se e Act of July 4, 1966, Pub. L. No. 89-487, 80 Stat.

250. Although thi s comment focuses on standa rds, agencies also incorpo-

rate many other kinds of materials by reference in regulations. See Emily S.

Bremer, Incorporation by Reference in an Open- Government Age, 36 H.

J.L.  P . P’ 131, 145-4 7 (2013) [hereinaft er Bremer, Incorporation

by Reference].

2. See Admin. Conference of the U.S., Recommendation 78-4, Federal Agen-

cy Interaction With Private Standard-Setting Organizations in Health and

Safety Regulation, 44 Fed. Reg. 1357 (Jan. 5, 1979); Robert W. Hamilton,

e Role of Nongovernmental Standards in the Development of Mandatory

Federal Standards Aecting Safety or Health, 56 T. L. R. 1329, 1379-86

(1978).

3. See Federal Participation in the Development and Use of Voluntary Stan-

dards, 47 Fed. Reg. 49496 (Nov. 1, 1982).

4. See Pub. L. No. 104-113, §12(d), 110 Stat. 775 (1996), available at http://

www.nist.gov/standardsgov/nttaa-act.cfm.

5. See Emily S. Bremer, On the Cost of Private Standards in Public Law, 63 U.

K. L. R. 279, 279 (2015) [hereinafter Bremer, On the Cost].

6. See Recommendation 2011-5, Incorporation by Reference, 77 Fed. Reg.

2257, 2257 (Jan. 17, 2012), available at https://www.acus.gov/recom-

mendation/incorporation-reference. I served as the Conference’s in-house

researcher on this recommendation. See Bremer, Incorporation by Reference,

supra note 1, at 131 n.*.

and Bud get (OMB) h ave recently taken steps to encour-

age and support agency implementation of thi s collab -

orative approach.7

In Taking Public Access to the Law Seriously: e Prob-

lem of Private Control Over the Availabilit y of Federal

Standards, Professor Nina Mendelson has done a great

service, oering a st rong and comprehensive argument

for “why law need s to be public.”8 is c omment and the

Admini strative Conference’s recommendat ion also agree

that the policy goal should be to ma ke incorporated

material s free ly available online.9 W here we part ways is

with respect to the solution. Focusing exclusively on t he

public access dimension of the incorporation by reference

conundrum, Professor Mendelson concludes t hat any

solution relying on collab oration with private standards

developers “should be out of bounds.”10 But the problem

has several other dimensions —interests, both public and

private, that must be considered if one is to de sign a pol-

icy that is worka ble and avoids unintended, negative con-

sequences.11 Viewed from th is perspective, public-private

collaborat ion emerges as the policy prescription with the

greatest promise. And there is substanti al evidenc e that it

is alre ady working.

I. The Signif‌icant Private Role in

Standardization

To begin, the problem of public access to incorporated

standards must be understood within the context of the

7. See Request for Comments on a Proposed Revision of OMB Circular No.

A-119, “Federal Participation in the Development and Use of Voluntary

Consensus Standards and in Conformity Assessment Activities,” 79 Fed.

Reg. 8207 (Feb. 11, 2014). e proposed revisions were not printed in the

Federal Register, but are available on OMB’s website at T W H,

http://www.white house.gov/sit es/default/ les/omb/inf oreg/revision s-to-

a-119-for-public-comments.pdf (last visited Dec. 20, 2014); see also 159

C. R. H4499 (daily ed. July 16, 2013) (statement of Rep. Eddie

Bernice Johnson) (identifying collaboration as a preferable approach).

8. Nina A. Mendelson, Taking Public Access to the Law Seriously: e Problem

of Private Control Over the Availability of Federal Standards, 45 ELR 10776,

10777 (Aug. 2015), originally published as Nina A. Mendelson, Private

Control Over Access to the Law: e Perplexing Federal Regulatory Use of Pri-

vate Standards, 122 M. L. R. 737, 748 (2014).

9. See Recommendation 2011-5, 77 Fed. Reg. at 2258-59.

10. Mendelson, Private Control, supra note 8, at 802.

11. See Bremer, On the Cost, supra note 5, at 283-96.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.