Progress in the Dialogue Provoked by Recommendation 2011-5, Incorporation by Reference

One of the Administrative Conference's strengths is its ability to ignite, facilitate, and contribute to thoughtful and timely dialogue on cutting-edge issues in administrative process.  That strength was on display on October 10, 2012, in the Legal Issues Forum, a panel hosted by the American National Standards Institute (ANSI) as part of its annual event, World Standards Week.  The forum focused on the issue of "Incorporation by Reference, Reasonable Availability, and Copyright," an issue the Conference recently addressed in Recommendation 2011-5, Incorporation by Reference. The Administrative Conference was well represented among the experts who participated in the Forum.  Public Member John F. Cooney gave the keynote address to kick off the event.  Mr. Cooney serves as the Chair of the Committee on Administration and Management, which developed Recommendation 2011-5.  Attorney Advisor Emily S. Bremer, the Conference's in-house researcher on the project, moderated a lively discussion among the panel of experts, which included two additional members of the Administrative Conference.  Senior Fellow Peter L. Strauss, a professor at Columbia Law School, offered insightful critiques and thoughtful suggestions for how standards developers can make incorporated standards more freely available without jeopardizing necessary funding.  Meanwhile, Government Member Esa L. Sferra-Bonistalli, a Senior Attorney and Team Leader for the United States Coast Guard’s Office of Regulations & Administrative Law, provided crucial agency perspective on the issues. The discussion was candid and thought-provoking, revealing that while there is still work to be done to address the challenges of incorporation by reference, the dialogue is changing minds and moving administrative policy forward.  For example, ANSI explained during the Forum that it is currently creating an online library infrastructure that will allow individual standard developers to make their standards available online in a read-only format.  The initiative will speed implementation of Recommendation 2011-5 by providing a resource crucial to facilitating the public-private collaboration that is at the heart of the recommendation. The Forum was covered by Bloomberg BNA and reported in the Occupational Safety & Health Reporter.  The article is reproduced below, with permission. Reproduced with permission from Occupational Safety & Health Reporter, 42 OSHR 923, (Oct. 18, 2012). Copyright 2012 by The Bureau of National Affairs, Inc. (800-372-1033) <>

Impasse Still Holds in Debate Over Private Standards in Federal Rulemaking

Good-government advocates and standard-setting groups remain deadlocked on the question of how to make private standards readily available to the public once they have been incorporated by reference into federal rules, while still honoring the groups’ right to be paid for their work. Now, with the Office of the Federal Register and the Office of Management and Budget poised to rule on the question, the former chief lawyer at OMB’s Office of Information and Regulatory Affairs says standard-setting bodies should reach out to the agencies with suggested reforms before the agencies make their own decisions, which may not include a payment option. “The most important thing is to engage [agencies] before they reach a decision,” John Cooney told a symposium convened by the American National Standards Institute. “They’re not sunk in concrete yet. You have the opportunity to try to persuade them.” The current lack of activity by OMB on the question is proof that the government is “waiting for somebody to come up with a good idea,” said Cooney, now an administrative law attorney at Venable LLP. OFR and OMB are, separately, investigating ways to address the referencing of consensus standards. OFR’s investigation comes in response to a petition sent in February from a group of 20 law professors and advocates (77 Fed. Reg. 11,414). Neither agency has signalled when it will hand down a ruling, after taking public comment on the matter in the spring. Congress may also take up the issue, perhaps by amending the National Technology Transfer and Advancement Act, Emily Bremer, an attorney adviser with the Administrative Conference of the United States, told BNA Oct. 10. A ‘Wicked Question.’ At the heart of the issue lies what Cooney called a “wicked question.” On one hand, good-government advocates believe all laws should be available for free, but on the other, some standard-setting groups say their existence depends on the revenues their work brings in. For example, the Occupational Safety and Health Administration references in its regulations standards from such organizations as ANSI and the National Fire Protection Association on a wide range of safety issues. Those standards can only be accessed for a fee. The impasse is occurring now because of technological change, Cooney said. The American public has grown accustomed to having free access to information over the Internet. But the deadlock is unlikely to be broken easily, because there are “truly legitimate points on all sides of the question,” Cooney said. He added that the current state of affairs—in which any privately developed, copyrighted standard incorporated by reference into a federal regulation cannot be printed in the Federal Register and must be purchased by the end user—is inevitably going to change. “The status quo that has worked well for the last 30 years just cannot be sustained,” Cooney said. Still on the table is the “doomsday” scenario, in which the government would simply seize a private body’s standard by eminent domain and distribute it for free. But that option is a last resort for government, Cooney said, because it would almost certainly lead to litigation. ANSI Head Supports Status Quo. During the Oct. 10 forum, ANSI President Joe Bhatia took the side of standard-development groups, saying there is a “unanimous belief” that the current system, under which the federal government does not reprint copyrighted material in the Federal Register and standards writers are allowed to charge fees, “works very well.” In addition, private standards drive economic activity, and most businesses do not complain about the costs of purchasing standards, he said. Peter Strauss, an administrative law specialist at Columbia University who wrote the petition OFR is now mulling, offered some pathways out of the impasse during the symposium. One of his solutions calls for private groups to charge a fee only for the most recent versions of their standards, making earlier versions available for free. Another, based on the European approach, recommends that standards bodies work with agencies not to adopt precise technical standards, but rather broad language outlining what regulated entities must achieve, thus allowing the standards groups to offer their own rules without violating the concept that the law should be available for free. Academic Offers Solutions. A third way forward, Strauss said, would have standards bodies “festoon” their standards with commentary and other materials that is not incorporated by reference but still has value. “That way, you’ve got something else to sell,” Strauss said, noting that the American Law Institute follows that practice. ANSI is also working to establish an online library that would make it easier for individual standard developers to make their standards available electronically, Bremer of ACUS said. Bremer further said the online library should speed the implementation of ACUS’s December 2011 recommendation on incorporation by reference, which urges agencies to make private standards “reasonably available” to all parties—by, for example, publishing them as “read only” documents online. Another option discussed at the ANSI meeting involved amending the law governing the Federal Depository Library Program so that incorporated materials could be made more available in libraries, Bremer said. ACUS, an independent agency, makes recommendations on how the federal government should manage the rulemaking process and perform various administrative functions. Agencies Reflect on Incorporation by Reference. The incorporation by reference process has worked well for the Pipeline and Hazardous Material Safety Administration, largely because the agency does not have the technical expertise in-house to craft its own standards, said Vanessa Allen Sutherland, PHMSA’s chief counsel. Trying to promulgate technical standards would also take a forbiddingly long time, Sutherland said, noting that it already takes two to three years for PHMSA to move a rulemaking from start to finish. PHMSA incorporates 239 private standards by reference, many of which are highly technical, according to Sutherland. Similarly, the U.S. Coast Guard has found that when it involves industry in its regulations, the cost of compliance for the government goes down and “buy-in is also much higher,” said Esa Sferra-Bonistalli, senior attorney for the Coast Guard’s Office of Regulations and Administrative Law. The Coast Guard has 650 standards from 37 national and international organizations currently incorporated by reference. Many of them require an engineering degree to understand, Sferra-Bonistalli said. Although no consensus arose from the symposium, Bremer said she was encouraged by the discussion. “At this stage, incorporation by reference is really an ongoing dialogue,” Bremer said. “From that perspective, I was pleased with the progress we made.”

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