Taking Public Access to the Law Seriously: The Problem of Private Control Over the Availability of Federal Standards

• Date: 01 August 2015

45 ELR 10776 ENVIRONMENTAL LAW REPORTER 8-2015

A R T I C L E

Taking Public Access to the

Law Seriously: The Problem

of Private Control Over the

Availability of Federal Standards

by Nina A. Mendelson

Nina A. Mendelson is the Joseph L. Sax Collegiate Professor of Law, University of Michigan Law School.

In the 1930s, Harvard professor Er win Gris wold

famously complained about t he enormous nu m-

bers of New Deal regu lations that were obscurely

published on ind ividua l sheets or in “separ ate paper

pamphlets.”1 Finding the se bindin g federa l rules was dif-

cult, le ading to “chaos” a nd an “intolerable” situation.2

Congress responded, requ iring that a gencies publi sh a ll

rules i n the Federal Register and i n the Code of Federal

Regulations (CFR).3 Currently, recent federa l public laws,

the entire U.S. Code, the Federal R egister, a nd the CFR

are a ll freely available on line as well as i n governmenta l

depositor y libra ries.4

But with respect to thousands of federal regulations, the

clock has been turned back—and worse. To save resources

and build on private expertise, federal agencies have incor-

porated privately drafted standards into numerous fed-

eral regulations, but only by “reference.” ese standards

range widely. e CFR presently contains nearly 9,500

“incorporations by reference” of standards, often referred

to as “IBR” rules. Many IBR rules incorporate privately

1. Erwin Griswold, Government in Ignorance of the Law—A Plea for Better Pub-

lication of Executive Legislation, 48 H. L. R. 198, 199, 294 (1934).

Griswold notes that the thousands of pages of “law” issued in one year were

“scattered among 5,991 press releases during this period.” Id. at 199. ese

laws included hundreds of “industry” codes drafted under the auspices of

the National Industrial Recovery Act. See Mila Sohoni, Notice and the New

Deal, 62 D L.J. 1169, 1179 (2013).

2. Griswold, supra note 1, at 204, 205.

3. Note, e Federal Register and the Code of Federal Regulations—A Reapprais-

al, 80 H. L. R. 439, 440-41 (1966).

4. E.g., omas, L  C., http://thomas.loc.gov (last visited Sept.

29, 2013) (access to legislative materials); Federal Digital System, U.S. G’

P O, http://www.gpo.gov/fdsys (last visited Sept. 29, 2013)

(providing decades of access to the CFR, Federal Register, and all statutes).

drafted standards from so-called “standards development

organizations” or “SDOs,” organiz ations ranging from

the American Societ y for Testing and Materials (ASTM)

to the American Petroleum Institute (API).5 Recent IBR

rules cover food additives, pipeline operation, and infant

product safety.6 Agency use of IBR rules is likely to grow.

Since the 1990s, both executive branch a nd congressional

policies have ocially encouraged agency use of privately

drafted standa rds.

An individual who seeks access to this binding law gen-

erally cannot freely read it online or in a governmental

depository library as she ca n the U.S. Code or the rest of

the CFR. e SDOs generally claim copyright and reserve

the right to earn revenue by selling standards. Accordingly,

an individual typically must rst locate the standard, either

on the SDO’s website or by contacting the SDO, and then

pay a signicant SDO-set access fee. Otherwise she must

travel to Washington, D.C., to the Oce of the Federal

Register’s (OFR) reading room.7

is law, under la rgely private control, is not formal ly

“secret,” but it is dicult to nd and expensive. e incor-

porated standard for infant sling carriers is currently

priced at $51.608; incorporated pipeline safety standards

are roughly $150 per standard9; others can be far more

5. Emily S. Bremer, Incorporation by Reference in an Open-Government Age, 36

H. J.L.  P. P’ 131, 150 (2013).

6. E.g. Pipeline Safety: Periodic Updates of Regulatory References to Tech-

nical Standards and Miscellaneous Amendments, 78 Fed. Reg. 49996-99

(Aug. 16, 2013) (noting 64 incorporated-by-reference standards, includ-

ing safety, transport, and public notication); Food Additive Regulations:

Incorporation by Reference of the Food Chemicals Codex, 7th ed., 78 Fed.

Reg. 71457 (Nov. 29, 2013); Safety Standards for Infant Walkers and Infant

Swings, 78 Fed. Reg. 37706 (June 24, 2013).

7. Agencies also sometimes provide access in their reading rooms, typically in

Washington, D.C.

8. Standard Consumer Safety Specication for Sling Carriers, ASTM I’,

http:// www.astm. org/DATABASE .CART/HI STORICAL /F2907 -14A.

htm (last visited Mar. 27, 2015). Although ASTM maintains a “reading

room,” as of March 2015, the standard was inexplicably unavailable.

9. Emily Bremer, On the Cost of Private Standards in Public Law, 63 U. K.

L. R. 279, 315 (2015).

is Article was adapted from Nina A. Mendelson, Private Control

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

Private Standards, 112 M. L. R. 737 (2014). It has been

excerpted and updated with permission of Michigan Law Review

and Nina A. Mendelson. Please see the full article for footnotes and

sources.

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