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

• Author: Mendelson, Nina A.
• Position: Introduction through I. Incorporation by Reference of Private Standards, p. 737- 761

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations--but only by "reference." These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization, or else she must travel to Washington, D.C., to the Office of the Federal Register's reading room.

This law, under largely private control, is not formally "secret," but it is expensive and difficult to find. It raises the question of what underlies the intuition that law, in a democracy, needs to be readily, publicly available. Previous analyses of the need for publicity have focused almost wholly on the need of regulated entities for notice of their obligations. This Article assesses several other considerations, including notice to regulatory beneficiaries, such as Medicare recipients, consumers of dangerous products, and neighbors of natural gas pipelines. Ready public access to the law is also critical to ensuring that federal agencies are meaningfully accountable for their decisions, through both internal and external mechanisms, including voting, political oversight, and agency procedures. The need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm--a message inconsistent with core democratic values--is likely to flow from governmental adoption of regulatory law that is, in contrast to American law in general, harder to find and costly to access. Full assessment of the importance of public access to law both strengthens the case for reform of access barriers to incorporated-by-reference rules and limits the range of acceptable reform measures.

TABLE OF CONTENTS INTRODUCTION I. INCORPORATION BY REFERENCE OF PRIVATE STANDARDS A. The Use and Costs of Privately Developed Standards B. SDO Procedures II. DOES LAW NEED TO BE PUBLIC? A. The Establishment of Public Access to Statutes and Regulations B. Transparency, "Open Government," and Federal Rules 1. Transparency and Notice 2. Accountability for Legislative and Quasi-legislative Actions 3. The Distinctive Burdens Imposed by Access Prices for IBR Rules 4. Expressive Harm Imposed by Access Fees 5. Loss of Benefits for Regulatory Development III. PERMISSIBLE REFORM MEASURES CONCLUSION: ON PUBLIC ACCESS INTRODUCTION

The American democratic commitment to public law is longstanding. As James Madison wrote in 1822, "A popular Government, without popular information ... is but a Prologue to a Farce or a Tragedy; or, perhaps both." (1) And Justice Scalia echoed these sentiments nearly two centuries later: "Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes." (2) Scalia contrasted the "nasty practice [ ]" of an early Roman emperor. (3) Emperor Caligula reportedly faced public outcry after he enacted laws imposing severe penalties and had them inscribed in "exceedingly small letters on a tablet which he then hung up in a high place, so that ... many through ignorance ... should lay themselves liable to the penalties provided." (4)

And in the 1930s, Harvard professor Erwin Griswold complained about the enormous numbers of federal regulations, freshly issued by New Deal agencies, that were obscurely published in "separate paper pamphlets" or even on a "single sheet of paper." (5) Finding these binding legal rules was difficult, leading to "chaos" and an "intolerable" situation. (6) Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations ("CFR"). (7) Currently, recent federal public laws, the U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depositary libraries. (8)

Despite these repeated public commitments to transparency, we seem to be returning to a situation where thousands of federal regulatory standards are increasingly difficult to locate. The text of these standards appears in neither the Federal Register nor the CFR. They are privately drafted standards that a federal agency has incorporated only by "reference" into the CFR, and they are generally available only on request to a private organization and payment of a nontrivial price.

The CFR today contains nearly 9,500 "incorporations by reference" of standards, often referred to as "IBR" rules or standards. Some IBR rules incorporate material published by other agencies or state entities, (9) but many incorporate privately drafted standards from so-called "standards development organizations" or "SDOs," organizations ranging from the American Society for Testing and Materials ("ASTM") to the Society for Automotive Engineers and the American Petroleum Institute ("API"). (10) Agency use of private standards is likely to grow because, since the 1990s, both executive branch and congressional policies have officially encouraged it. Indeed, if an agency develops "government-unique" standards when a "consensus" private standard exists, the agency must explain why it did so. (11)

A reader perusing worker-safety requirements in the CFR may note that contractors handling pressure systems must comply with the American Society for Mechanical Engineers ("ASME")'s "Manual for Determining Remaining Strength of Corroded Pipelines," (12) among other standards. To access these standards, the CFR refers the reader directly to the ASME at its New Jersey location or at its website. (13) The reader's only alternative is to write for an appointment at the Office of the Federal Register ("OFR")'s reading room in downtown Washington, D.C. (14) On the internet, the cited standard is available from a third-party seller for $68; despite the CFR's promise, ASME itself apparently no longer provides the standard. (15)

Private standards like these are used to define the content of federal rules in an extraordinarily wide variety of subject areas, ranging from toy safety to Medicare prescription-drug-dispensing requirements to nuclear power plant operation. (16) Some IBR standards might be colloquially characterized as "technical," including those establishing standard-measurement protocols (17) or coordination-type standards. Coordination standards include, for example, the National Fire Protection Association's "standard coupling" compatibility standard, developed around 1910 to ensure that fire hoses can be properly attached to fire hydrants, no matter the city of the originating fire truck. (18) Even coordination standards are not policy-neutral, since they can clearly affect industry structure and market prices. (19)

But agencies also expressly use IBR standards to define policy, including substantive standards for health and safety. (20) For example, federal rules require employers who hire teenagers to load scrap paper into balers, a particularly hazardous occupation for minors in the Department of Labor's view, to ensure that the machines conform to incorporated-by-reference American National Standards Institute ("ANSI") safety standards. (21) The relevant standards are no longer available from ANSI at all but can be purchased from a third-party seller for $50.40; ANSI's revision costs $150. (22) Other private standards are incorporated as an acceptable, although not exclusive, means of compliance with federal standards. (23)

And private standards can also define the extent of available federal benefits. For example, Medicare Part D standards permit some coverage of pharmaceuticals dispensed for off-label uses, but only if the drug is listed as medically indicated in one of three private drug compendia. (24) As the API recently wrote in public comments, IBR standards can include "politically contentious permitting regulations that affect almost every industry." (25)

Meanwhile, although the Federal Register Act, as amended by the Freedom of Information Act ("FOIA"), broadly requires agencies to publish in the Federal Register "substantive rules of general applicability adopted as authorized by law," (26) it includes an exception: "[M]atter 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." (27) The original idea...