Private Control Over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards

AuthorMendelson, Nina A

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 re- sponded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations ("CFR").7 Currently, recent federal pub- lic laws, the U.S. Code, the Federal Register, and the CFR are all freely availa- ble 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 stan- dards that a federal agency has incorporated only by "reference" into the CFR, and they are generally available only on request to a private organiza- tion 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 develop- ment 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" pri- vate 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 Soci- ety for Mechanical Engineers ("ASME")'s "Manual for Determining Re- maining 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 charac- terized as "technical," including those establishing standard-measurement protocols17 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 re- quire employers who hire teenagers to load scrap paper into balers, a partic- ularly 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 stan- dards 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 ben- efits. 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 Free- dom 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 behind this exception to Federal Register publication was to permit the government to save print- ing costs by allowing agencies to incorporate voluminous material published elsewhere,28 such as rules freely available from other federal agencies or state agencies.

In the case of privately developed, but incorporated, standards, however, the agency generally refers the reading public to the SDO.29 SDOs have, seemingly without exception, asserted copyright protection and an entitle- ment to charge a "purchase price" for access. Even when they provide some free, read-only access to the public, SDOs generally claim the option to re- voke access or to charge for it.30 Again, the reader's alternative is to make an appointment at the OFR's reading room in Washington, D.C. The reading room contains no photocopier.31

The payments that SDOs require typically significantly exceed the trans- action costs of making a standard available, such as the copying costs.32 Many SDOs have stated that the fees they charge for standards purchases represent compensation for value and a source of income that helps pay for the development of the standards.33 Prices that SDOs charge for a variety of IBR standards range from fifty to several thousand dollars for the prescrip- tion drug compendia incorporated in Medicare rules. The least expensive of these compendia costs $349, and one reportedly costs $6,000.34

Under the relevant statute, the OFR must approve an agency's request to incorporate by reference, rather than publishing in the Federal Register.35 To date, however, the OFR has not publicly disclosed the extent to which it considers access charges in deciding whether a standard is "reasonably avail- able to the class of persons affected thereby" within the meaning of the stat- ute and thus suitable for an agency to incorporate in the Code of Federal Regulations only by "reference."36 Quite obviously, many of these standards will be financially out of reach for significant numbers of individuals and small businesses.

This issue is currently receiving significant attention with an eye to re- form. In December 2011, the Administrative Conference of the United States issued a tepid recommendation, acknowledging the public access problem,37 but recommending only that agencies try to "promote the availability of the materials while respecting the copyright owner's interest."38 In early 2012, a group of law professors led by Columbia law professor Peter Strauss, and including myself, petitioned the OFR to revise its rules for incorporating by reference and to approve IBR rules only if free read-only access were pro- vided to the public.39

Shortly before this Article went to press, the OFR, after taking comment on the petition,40 agreed to revise the rule, although the proposed rule, is- sued in October 2013, falls far short of what the petition requested.41 The Notice of Proposed Rule still does not address the meaning of the statutory "reasonably available" requirement, proposing instead simply to reiterate the requirement in its rules42 and to ask agencies to discuss their efforts to make the materials available.43 Meanwhile, the proposed rule would also liberalize when agencies could incorporate outside material.44

The issue has received scholarly attention as well. A number of com- mentators have stressed the value SDOs can contribute to the federal regula- tory process45 and have assessed whether SDOs possess legitimate copyright claims in the standards, once agencies incorporate them into federal rules. The possibility that the "merger" doctrine could eliminate such claims, for example, has been hotly debated.46 And using SDO standards likely reduces demands on agency budgets, although it does so largely by shifting the cost of developing standards to those who wish to read them.

Emily Bremer argues that although incorporation by reference "impedes access to the law," agencies should continue, in view of the value of SDO standards, to incorporate and rely on copyrighted standards, if perhaps more...

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