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Emily S. Bremer, “Introducing Incorporation by Reference,” The Regulatory Review, 08-24-2022, https://www.theregreview.org/2022/08/24/bremer-introducing-incorporation-by-reference/

The difficulty is that, when an agency incorporates a private, voluntary standard into a regulation, regulated parties and the public must usually pay the private standard-setting organization to see the full text of the agency’s proposed or final regulation. This requirement is because most standard-setting organizations assert copyright over their standards and rely on the revenue from the sale of the standards to fund their standard-setting processes. The resulting financial and practical barriers to public access to incorporated standards are contrary to modern administrative law norms, which have been shaped by the internet and the free, ready availability it provides to statutes, regulations, and agency documents.

The Regulatory Review, “Incorporating Private Standards into Public Regulations,” The Regulatory Review, 01-26-2015, https://www.theregreview.org/2015/01/26/series-incorporation-by-reference/

Incorporation by reference has been said to serve a valuable purpose. It can enable federal administrative agencies to capitalize on industry expertise by referencing standards developed by private organizations and incorporating them into government binding regulation.

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

The resolution proposes legislation that would require federal agencies to provide an online source at which material that has been incorporated by reference into proposed or final regulations can be consulted without charge. At least read-only access would have to be afforded. This requirement would serve to enhance citizens' ability to see the law, to ascertain their legal obligations, and to comment on pending rulemaking proposals. The proposed legislation would contain limitations that are designed to accommodate the intellectual property interests of organizations that create incorporated standards.

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

This resolution is a successor to Resolution 106A, which the Section of Administrative Law and Regulatory Practice submitted to the House of Delegates for action at the 2016 Midyear Meeting. That earlier version would have urged Congress to amend the Administrative Procedure Act to require "meaningful free public availability" of all text incorporated by reference into proposed and final substantive rules of general applicability.

Emily S. Bremer, “On the Cost of Private Standards in Public Law,” Kansas Law Review, https://kuscholarworks.ku.edu/bitstream/handle/1808/20310/5-Bremer_FinalPDFSheridan.pdf?sequence=1

There is good reason to believe that this collaborative approach can succeed. Many standards developers already provide free access to their standards, and there appears to be momentum building in that direction. ASTM’s recent decision to create an online library of all its incorporated standards is a highly significant development. As the largest standards developer in the United States, this decision affects nearly one quarter of the incorporations by reference in the CFR. ANSI also recently launched a centralized online library that allows standards developers to provide free read-only access to their incorporated standards even if they lack the resources to develop the necessary technological infrastructure themselves.275 Finally, it is notable that PHMSA’s success in implementing Section 24 was achieved only through collaboration with its standards developers. Other agencies can do the same—and without being forced into the kind of quandary created by Section 24.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

Full digital access without charge, beyond what is available at governmental depository libraries, would place access to IBR standards on the same footing as other federal regulations. (This sort of access would not necessarily preclude SDOs from selling books of standards, much as the Government Printing Office continues to sell bound reference sets of the CFR.) The current read-only access to these standards occasionally provided at the option of SDOs and on SDO websites is insufficient. The SDOs typically claim the right to revoke this access at will, and no enforceable commitments assure ongoing access.357

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

As discussed in greater detail below, the resolution incorporates a number of limitations on the recommended public access requirements, so as to ameliorate any reduction in the economic value of copyrighted standards. In some instances, however, these limitations may not obviate the need for additional funding from the government to compensate SDOs for the use of their standards. The extent to which the access requirements contemplated by the resolution would give rise to a need for compensation in a host of different contexts cannot be predicted with certainty. The resolution leaves these determinations to be made between agencies and SDOs during the process through which authorization for use of copyrighted material is secured. The ultimate point, however, is that society benefits from the public's ability to obtain access to requirements incorporated by reference into federal regulations; thus, in situations in which agencies elect to continue to rely on IBR rules and conclude, in consultation with SDOs, that compensation is appropriate, the expenditure of public resources to support such access should be considered legitimate and worthwhile, and Congress should be willing to fund such expenditures.

Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/

Free Access Mandate. For many students, the most obvious solution to incorporation by reference's public access problem would be to mandate free access to incorporated standards. Because the government neither creates nor has unilateral control over private standards that are or may be incorporated by reference, a free access mandate would most likely need to be structured as a statutory requirement that agencies only use standards that the public can freely access. The requirement could be imposed via a government-wide statute, perhaps enacted as an amendment to 5 U.S.C. § 552(a)(1). This has the virtue of addressing the issue definitively in a single, governmentwide statute. There are a variety ofissues to consider in evaluating this possibility:

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

Both the National Technology Transfer Act of 1995 and Office of Management and Budget Circular A-119 encourage federal agencies to rely on private voluntary consensus standards. 8 Accordingly, agencies have, on a great many occasions, worked with private standards development organizations (SDOs) and incorporated privately drafted standards by reference into thousands of federal regulations. These privately drafted standards unquestionably have significant public value. SDOs often support and sometimes even seek to have their privately drafted standards adopted as the law of the land. And agencies indisputably find it useful to draw upon this stock of standards.

Emily S. Bremer, “Incorporation by Reference in Federal Regulations,” Administrative Conference of the United States, 11-15-2012, https://www.acus.gov/sites/default/files/documents/Bremer-Incorporation-by-Reference-Slides-11-15-12.pdf

Why Incorporate by Reference?

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

The Pro Codes Act represents one possible option for legislating in this area. On the inventive end of the spectrum, if Congress found that existing legal provisions144 and market incentives are sufficient to facilitate public availability,145 it might choose to strengthen SDOs’ copyright without imposing online-access requirements. On the access end, if Congress found that copyright was unnecessary for SDOs, it could provide that incorporation by reference places an IBR standard in the public domain, perhaps by expanding the reach of the statute denying copyright to government works.146

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

Lastly, the free availability of laws and regulations generally benefits the ongoing development of regulatory standards. Future law drafters, whether in Congress, agencies, or private organizations, can learn from the innovations of earlier standards and their successes or failures. Innovations in regulatory design have led to a preference for performance standards over design standards, as well as an increased use of information-disclosure standards and so-called “nudging” standards that take advantage of behaviorist insights.348 Greater public disclosure of SDO-developed standards would undoubtedly increase the opportunity for these sorts of innovations.349 Technical standards that are open to the public can prompt technological innovation as well.35

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

Furthe1more, as noted, the public access required by the legislation would apply only to the portions of a standard that have been incorporated by reference into a regulation. This limitation is another accommodation to the interests of SDOs. To the extent that those organizations have customers that are willing to purchase an entire copy of a given standard, or other products or services derived from it, the organizations would continue to be able to rely on profits from sales to such customers to recoup costs of creating the standards.

Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/

Most standards are produced by private nonprofit SSOs that assert copyright in their standards and rely on the revenue from the sale of those documents to fund the standard-setting process. 24 When an agency uses a standard in a regulation, the copyright prevents the agency from publishing the full text of that standard in the Federal Register, CFR, or on the agency's own website. 2- Instead, the agency incorporates the standard "by reference," which means the agency identifies the standard and the organization that created it in the relevant Federal Register notice and CFR provision, but it does not print any of the standard's content in those governmental documents. 26 Interested persons must contact the relevant SSO to obtain a copy of the standard if they wish to read its content.2 '

Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/

Each year, federal administrative agencies routinely adopt thousands of legally binding rules through a process that culminates in those rules being published in the Federal Register and codified in the Code of Federal Regulations (CFR). This module offers law faculty the information, plans, and resources needed to introduce students to a common federal rulemaking practice called incorporation by reference. When an agency incorporates by reference, it promulgates a rule that, with approval from the Office of the Federal Register (OFR), identifies but does not reprint material already published elsewhere. The identified materials are then "deemed published in the Federal Register" and in the CFR.2 The incorporated materials become part of the agency's rule thus becoming binding law without actually being included in the law.

Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403

RESOLVED, That the American Bar Association urges Congress to enact legislation that 2 requires the following when a federal agency proposes or issues a substantive rule of general 3 applicability that incorporates by reference any portion of a standard drafted by a private 4 organization:

David Halperin, “Congress Should Reject Bill To Let Private Groups Control Access To U.S. Laws,” Republic Report, https://www.republicreport.org/2024/congress-should-reject-bill-to-let-private-groups-control-access-to-u-s-laws/

If the SDOs want an alternative, we have repeatedly offered one: Instead of making entire books of standards the law, as happens now, agencies or legislatures could incorporate by reference or directly paste into regulations or statutes only those parts of standards that they really need to make law. Then SDOs would still have exclusive content to sell in their standards books, and the public would have full access to the law.

David Halperin, “Congress Should Reject Bill To Let Private Groups Control Access To U.S. Laws,” Republic Report, https://www.republicreport.org/2024/congress-should-reject-bill-to-let-private-groups-control-access-to-u-s-laws/

If the SDOs want an alternative, we have repeatedly offered one: Instead of making entire books of standards the law, as happens now, agencies or legislatures could incorporate by reference or directly paste into regulations or statutes only those parts of standards that they really need to make law. Then SDOs would still have exclusive content to sell in their standards books, and the public would have full access to the law.

(Daniel W., May. “Five Known Unknowns about the Next Generation Global Political Economy.” )

Globalization therefore creates powerful pressures on governments not to close off their economies through protectionism or military aggression. Interdependence can also tamp down conflicts that would otherwise be likely to break out during a great power transition. Of the 15 times a rising power has emerged to challenge a ruling power between 1500 and 2000, war broke out 11 times.109 Despite these odds, China’s recent rise to great power status has elevated tensions without leading to anything approaching war. It could be argued that the Sino-American economic relationship is so deep that it has tamped down the great power conflict that would otherwise have been in full bloom over the past two decades. Instead, both China and the United States have taken pains to talk about the need for a new kind of great power relationship. Interdependence can help to reduce the likelihood of an extreme event—such as a great power war—from taking place.

(Ryan David, “US Leadership in Cyberspace: Transnational Cyber Security and Global Governance.” Cyberspace and International Relations: Theory, Prospects and Challenges, pp. 169-170.)

The Open Door holds that US policymakers subscribe to a worldview where the security of the United States rests on sustained economic and political expansion abroad (Beard 1934; Williams 1959; also see Bacevich 2002; Layne 2006, 1998). Adas (2006) has shown that US policymakers from the founding of the United States through the present consistently leverage technology in pursuit of that expansion. Beginning in late 1994 and continuing to the present, US policymakers initiated and sustain a policy to repurpose the Internet as a platform for the expansion of American products and political ideals (Kiggins 2011). From the view of US policymakers, the social purpose of the Internet in the post-Cold War era is to serve as a platform for expanding free-market commerce and free speech, for globally expanding information and economic exchange (Kiggins 2011). To ensure the Internet is used in accordance with this social purpose, US policymakers have constructed a discourse around the Internet founded on the principle of openness (Antonova 2008; McCarthy 2011). US policymakers discursively promote and protect the Internet as an open domain in order to create global institutional conditions that are favorable for global expansion of information and economic exchange consistent with the worldview of US policymakers. Castells (1999) has shown how the Internet assists globalization by linking states in a deepening web of economic interdependence that characterizes this era of global capitalism shaped by the United States and other allied advanced industrialized democracies. Evidence of the growing economic import of the Internet supports the claim that the Internet is an increasingly vital global platform for exchange.