Search the archive.

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/

The government could pay for the licenses necessary to provide free online access to all incorporated standards. This would effectively turn the standards into public goods accessible to all, including members of industry who would otherwise purchase copies of the standard for non-regulatory purposes. In essence, the government would have to buy out the market for the standard. The cost would be prohibitive. This approach might also create a financial incentive for an agency to use an outdated version of a standard for which another agency had already secured the necessary license, rather than select the best standard possible.

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 is intended to advance the general principle that citizens in a democratic society must be able to consult the laws that govern them. A corollary of that principle is that all citizens should have access in full to binding federal regulations. Regulations themselves are published in the Federal Register and are freely available online and at all federal depository libraries. Under present law as implemented, however, affordability problems often undermine the principle of public access with respect to material that has been included in such rules through incorporation by reference (IBR). The legislation proposed in the resolution would provide for a common baseline of availability by requiring agencies to provide an online source at which IBR material in such rules may be consulted without charge. The legislation would also provide for access without charge to material incorporated by reference into proposed rules while those rules are under consideration, so that citizens may comment on those proposals.

Peter Strauss, “We Decline to Define ‘Reasonably Available’,” The Regulatory Review, 01-26-2015, https://www.theregreview.org/2015/01/26/strauss-reasonably-available/

The new rules thus leave unaddressed a number of important issues. Ordinarily, rulemaking proposals must be attended by the public availability for possible comment of supporting data and studies; the amendments to Part 51 do not address the availability to potential commenters of data or studies supporting a standard proposed to be incorporated. The rules continue to permit incorporation by reference to endure without time limit, despite the predictable impacts of time on both availability and relevance; and they pay no attention to the terms and price at which the adopting private organizations offer the incorporated standards for sale.

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

Thousands of binding federal regulations "incorporate by reference" material that is contained in standards drafted by private organizations. In many instances, members of the public can obtain access to such material only by visiting a reading room in Washington, D.C., or by purchasing a copy of the standard from the organization that created it. This limited access can create a cost barrier for small businesses that wish to ascertain their obligations under these regulations, as well as for citizens who wish to comment on pending regulations. The policy challenge is to ensure public access to incorporated material in a manner that acknowledges the intellectual property interests of standards development organizations and that does not unduly impair their ability and incentive to continue to produce such standards.

Nina Mendelson, “Public Access to the Law Must Be Taken More Seriously,” The Regulatory Review, 01-28-2015, https://www.theregreview.org/2015/01/28/mendelson-public-access/

Agencies have incorporated – but only by reference – over 9,000 privately drafted standards into binding law. These “incorporated by reference” (IIBR) standards, unlike the text of all other statutes and regulations, are not readily available either online or in libraries, but instead are strewn across numerous private websites, with prices for access ranging into the hundreds or even thousands of dollars per standard.

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/

Through the practice of incorporation by reference, government agencies enact into law the standards developed by private organizations—often without giving the public free, easy access to what those private standards say. It is a modest caricature to say that incorporation by reference allows government officials to shortcut their work by imposing on individuals and businesses the relatively secret dictates of private actors. Introduced this way, incorporation by reference should pique the interest of professional students and anyone interested in the rule of law.

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/

Requiring interested persons to pay to read standards incorporated by reference into proposed and final regulations can present a significant problem from the perspective of administrative law and its longstanding commitment to government transparency. Requiring payment undermines public participation in the rulemaking process by erecting a barrier for those who wish to comment on a proposed regulation. After a final rule is promulgated, payment requirements necessitate that anyone seeking to know what the law requires pay a private party to read the full text of a federal law.3 1

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/

Although the EPA and FAA frequently incorporate materials other than standards, the incorporation by reference of private standards is controversial because these standards are developed by nongovernmental SSOs that often make them only available for a fee. Of course, by law all materials incorporated by reference must be "reasonably available," which has traditionally meant public inspection at OFR and in the relevant agency's library. 23 This in-person physical availability is theoretically free, but it requires an in-person visit, usually to Washington, D.C..

Administrative Conference of the United States, “Administrative Conference Recommendation 2011-5,” Administrative Conference of the United States, 12-08-2011, https://www.acus.gov/sites/default/files/Recommendation-2011-5-Incorporation-by-Reference_0.pdf

Updating Regulations. Updating regulations that incorporate by reference is another challenge. Agencies are legally required to identify the Complying with Procedural Requirements. Finally, successfully incorporating by reference requires agencies to comply with detailed procedures and to draft regulations carefully. The Office of the Federal Register (OFR) is statutorily charged with approving all incorporations by reference, and has issued regulations and guidance establishing policies and procedures for doing so. Procedural errors can delay the publication of rules that incorporate by reference. Poor drafting may create confusion among regulated parties or produce a rule that does not fulfill the agency’s regulatory purpose. The Conference’s research revealed that agencies reporting few or no problems in complying with OFR’s incorporation by reference procedures followed identifiable best practices that other agencies should consider adopting

Emily S. Bremer, “Standards, Regulations and Incorporation by Reference,” ASTM International, https://sn.astm.org/first-person/standards-regulations-and-incorporation-reference-nd12.html#:~:text=Recommendation%202011%2D5%20urges%20a,and%20to%20other%20interested%20parties.

Updating is a challenge: When a new version of a standard becomes available, an agency must conduct a notice-and-comment rulemaking to update its regulation accordingly. Some agencies, particularly those required to observe heightened procedural requirements in rulemaking, are not able to invest the time and resources necessary to keep regulations up to date. This has the potential to endanger the public interest because it prevents agencies from using the most technically advanced standards available.

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

Stripping copyright protection for incorporated materials is a poor solution to the public access problem: it would be both under- and overinclusive and would create new problems of its own. It would be underinclusive because it would not address the need for public access during the rulemaking stage, before a material is incorporated by reference and becomes law. It would be over-inclusive because it would punish the many private publishers that already provide free online access. Indeed, in the public debate over this issue, many erroneously convey the impression that copyright is synonymous with for-pay access.95 Those who advocate for stripping incorporated standards of copyright protection also overlook the potential public benefits of preserving copyright. It provides an incentive for private standards development, funding the development of essential standards that convey significant public benefits.96 If not through fees for published standards, the public will have to pay the significant costs of standards development through some other mechanism. Copyright also provides the standards developer with the legal right and incentive to ensure that third parties are not disseminating erroneous or incomplete versions of its standards. Finally, if the government stripped copyright protection for incorporated materials, whether through legislation or litigation, affected copyright owners may have a viable takings claim.97

Emily S. Bremer, “Standards, Regulations and Incorporation by Reference,” ASTM International, https://sn.astm.org/first-person/standards-regulations-and-incorporation-reference-nd12.html#:~:text=Recommendation%202011%2D5%20urges%20a,and%20to%20other%20interested%20parties.

Keeping incorporating regulations up to date poses another challenge for agencies. The law requires that agencies identify the specific version of a standard that is being incorporated by reference into a regulation. This is sound policy. Allowing agencies to incorporate by reference without identifying the specific version of the standard that is incorporated would make regulations less clear and would likely sow confusion among regulated parties; it would also permit dynamic incorporations, under which the law would change whenever an incorporated standard changed. This situation would deprive the agency of responsibility and control over its own regulations. That would be undesirable as a matter of public policy and might also raise legal issues because it would transfer regulatory authority to private standards developers.

Koren W. Wong-Ervin and Joshua Wright, “Intellectual Property and Standard Setting,” The Federalist Society Review, 12-05-2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878955

After the investments of time, money, and competitive effort required to spur breakthrough inventions have already been made and proven successful, it can be tempting to carve up the benefits and distribute them throughout the economy. Doing so, however, would harm competition, innovation, and consumers in the long run. If the government has demonstrated that it is too willing to step in and appropriate the gains from innovation and dynamic competition, then potential innovators anticipating such interventions will have weak incentives to risk investment in new inventions. In addition, the costs of Type I errors (i.e., false positives) leading to a chilling of procompetitive innovation are significant.13

Catherine Shu, “Can the law be copyrighted?,” TechCrunch, 04-09-2019, https://techcrunch.com/2019/04/09/can-the-law-be-copyrighted/

Scott and Garrett Reynolds say that lawsuits like the one they are facing may potentially deter other developers from working on tools to automate building and safety processes, such as calculating fire resistance in walls. The UpCodes suit, and the other cases that came before it, aren’t just relevant to builders. Technology has been able to streamline the process of regulatory and legal compliance in several industries, but innovation may slow if would-be founders are unclear about how copyright law applies to them.

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

Supporters of the Pro Codes Act, including SDOs such as the National Fire Protection Association, argue that their work creating standards provides “critical public benefits.”135 If incorporation by reference destroys copyright protection, SDOs maintain that they will no longer be able to fund their activities by publishing, selling, and licensing their standards to professionals who use them.136 SDOs also note that they already permit free viewing of their standards by the public online.137

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

On the incentive side, Congress may consider whether judicial decisions—which have recently trended against SDOs’ copyright claims—have undercut SDOs’ ability to fund their operations through publishing and selling their standards. Some may question whether copyright protection for IBR standards is necessary, arguing that SDOs could fund their activities in other ways or combine IBR standards with other material to create an unambiguously copyrightable form of their work. Others, including many SDOs, maintain that copyright is needed for them to recoup the costs of standards creation.143 On that view, uncertainty in current law may undermine SDOs and the social benefits they create for lawmakers, governmental agencies, and the public.

International Code Council, “Save Lives: Protect Copyright for National Standards” International Code Council, https://www.iccsafe.org/wp-content/uploads/22-21164_COMM_Brand_Copyright_Fact_Sheet_FLR_v1_MIDRES.pdf

*date obtained with carbon dating the internet

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/

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 thoughtfully.47 Professors Strauss and Cunningham argue for significantly greater public access, acknowledging that charging for standards interferes with the “kinds of activities American[ ]administrative law has long committed to fully open public notice and participation,”48 although Strauss suggests a class of incorporated materials for which SDOs might still be permitted to charge access fees to defray revenue losses on other IBR standards.49

Nina Mendelson, “Public Access to the Law Must Be Taken More Seriously,” The Regulatory Review, 01-28-2015, https://www.theregreview.org/2015/01/28/mendelson-public-access/

Administrative Conference of the United States (ACUS) senior attorney Emily Bremer has argued in detail that public access to the law must be balanced against other values, such as reducing agency costs associated with regulation. In particular, she cites the example of PHMSA, the Pipeline and Hazardous Materials Safety Administration, which was compelled by statute to ensure that all its IBR standards were freely available online beginning in 2013, until Congress cut the requirement back several months later.

Patricia A. Griffin and Maury Saunders, “ANSI Publishes Action Brief on IBR Landscape for SDOs,” American National Standards Institute, 05-09-2024, https://www.ansi.org/standards-news/all-news/2024/05/5-9-24-ansi-publishes-action-brief-on-ibr-landscape-for-sdos

IBR is a practice by federal, state, local, and Tribal authorities of referencing standards into regulations. SDOs make their works available for use by governmental entities in setting safety and other regulations when those entities deem it in the public interest, with the understanding that these works will retain their copyright protection. This provides SDOs the ability to maintain control of the works that they create and to generate revenue from the sale and licensing of these works, which, in turn, enables SDOs to sustain their ongoing standards creation, refinement, and updating. Recent case law, however, is trending towards limiting copyright protection in IBR’d standards.