On July 1-2, RegBlog, a project affiliated with the Penn Program on Regulation, published a three-part series of posts on Regulating by Reference. In the first installment, Professor Peter L. Strauss, a Senior Fellow to the Conference, argues that federal agencies should pay to make any copyrighted, incorporated materials freely available to the public. In the next installment, Professor Nina A. Mendelson, a Public Member of the Conference, takes the position that incorporated materials must be easy to locate and free of charge to the public. Finally, my post argues that collaboration between federal agencies and copyright holders, such as that urged in Recommendation 2011-5, Incorporation by Reference, is the key to making the law free. My contribution to this important discussion is reprinted below with permission.

Collaboration is the Key to Making the Law Free

Emily S. Bremer | 07/02/13

As federal rulemaking dockets and regulations have moved online, a previously overlooked issue has emerged: federal regulations frequently incorporate by reference copyrighted materials that must be purchased from a private organization. Most incorporated materials are voluntary consensus standards developed by private-sector non-profit organizations such as trade associations, professional societies, or dedicated standards-development organizations. Indeed, federal law and executive policy generally require agencies to use available voluntary consensus standards whenever possible instead of creating “government-unique” standards solely for regulatory purposes.

How can government make these incorporated materials as readily available to the public as federal rulemaking dockets and regulations? The problem, it turns out, is far easier to identify than it is to solve.

As a matter of sound administrative policy, incorporated materials should be readily available to the public online. During the rulemaking process, free electronic access to material an agency proposes to incorporate by reference may be necessary to facilitate meaningful opportunities to comment on a proposed rule. Similarly, materials incorporated into final, binding regulations should be freely available to both regulated parties and other interested entities.

But the law does not require free, online access to incorporated materials. In fact, it does not even require free, online access to regulations. Although the Federal Register Act requires the Government Printing Office (GPO) to provide electronic access to theFederal Registerand the Code of Federal Regulations(CFR), it also authorizes GPO to charge “reasonable fees” for that access. To its credit, GPO has chosen not to use that authority.

The statute governing the availability of incorporated materials is, ironically, the Freedom of Information Act (FOIA). One of its provisions permits agencies to fulfill publication requirements by incorporating by reference “matter reasonably available to the class of persons affected thereby,” with the approval of the Director of the Federal Register. Congress originally enacted this provision in 1966 to reduce the length and improve the readability of the Federal Register and CFR. Office of the Federal Register (OFR) regulations and guidance establish the procedure that agencies must follow to secure approval to incorporate by reference.

In this age of open, electronic government, FOIA’s standard seems deficient in two respects. First, it reflects a narrow concern for regulated parties’ access to the law, while failing to recognize the broader public’s interest in access. Second, the “reasonably available” standard is not stringent enough to require free online access. FOIA’s legislative history reveals that Congress expected agencies would incorporate by reference “professional or specialized” publications, which are neither free nor typically available in public libraries.

If this was exclusively an administrative process issue, the solution would be straightforward: amend FOIA to mandate free online access to materials incorporated by reference into proposed or final rules. OFR is currently considering a petition requesting that it amend its regulations to achieve essentially this result.

This straightforward solution is unworkable when incorporated materials are copyrighted, although there is some ambiguity in the law. This ambiguity arises from the Fifth’s Circuit’s 2002 en banc decision in Veeck v. Southern Building Code Congress International, Inc. The court held that a privately authored model code prepared for adoption as law enters the public domain once it is adopted. The court noted, however, that a case involving the incorporation by reference of an extrinsic standard would be “distinguishable in reasoning and result.”

Congressional action is probably required to resolve this copyright dispute. Standards developers have assiduously avoided further litigation of the issues presented in Veeck, and federal agencies are typically risk averse when it comes to potential copyright infringement. Even if Veeck were extended nationally to all extrinsic standards incorporated by reference, it would not enable agencies to provide free online access to copyrighted materials at the rulemaking stage, before those materials are incorporated into law. Some have argued that agencies should simply buy the licenses necessary to provide free online access, but that would undoubtedly prove cost prohibitive.

The challenge is finding a way to expand public access to incorporated materials without undermining a highly valuable public-private partnership in standards. In the United States, most standards are (and long have been) developed by the private sector. Standardization is essential to trade and the economy, technical innovation, and public health and safety. Since the late 1970s, federal policy has increasingly favored agency use of voluntary consensus standards in regulation.

Integrating private standards into public law benefits agencies, regulated parties, and the public. Regulations requiring the inclusion of technical standards can be promulgated more quickly. Enforcement is more successful, less expensive, and less burdensome because regulated parties often already understand and conform to private standards. More importantly, using private standards allows agencies to benefit from technical expertise the private sector possesses.

A collaborative approach provides the best promise of a workable solution to the public access problem. That approach is reflected in a December 2011 recommendation of the Administrative Conference of the United States. It urges agencies to work with copyright owners and use available technologies – such as read-only access – to facilitate broader public access to incorporated materials without devaluing copyright and undermining federal standards policy.

Some have criticized this approach as too weak. But it holds a significant advantage: agencies could implement it immediately. The Conference’s approach does not require years of unpredictable litigation, nor does it depend on unlikely congressional action.

Even if what the Conference recommended turns out to be just a first step, a collaborative approach will work. Standards development organizations already have been responsive to the public need for online access in many cases. Agencies have been able to negotiate broader access in individual proceedings. And ASTM International, the largest U.S. standards development organization, recently launched an online, read-only library of its incorporated standards.

There is more work to be done, but the government has a solid foundation of public-private collaboration upon which it can build.

Emily S. Bremer is an attorney advisor for the Administrative Conference of the United States. The views expressed here are the author’s alone and do not necessarily represent the views of the Administrative Conference or its members. This post draws from the author’s recent article in the Harvard Journal of Law and Public Policy, “Incorporation by Reference in an Open-Government Age.”

The post is part of a three-part series on Regulating by Reference.