The administrative state would stop functioning.

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

One consequence of the predominantly private character of the U.S. standards system is that public standards are—and long have been— significantly outnumbered by private standards.166 A recent study suggests that there are at most 114 federal agencies,167 while as of 2004, there were more than 600 standards development organizations in the United States.168 There is significant diversity among these private organizations, although the most common are trade associations, professional societies, standards organizations, international organizations, and consortia.169 It is estimated that there are currently more than 100,000 private standards actively in use in the United States.170 In any given sector, such as consumer products or pipeline transportation, the output of the private standards developers typically far outstrips that of the relevant public counterpart. Thus, in 1990, one scholar noted that while the Consumer Product Safety Commission (CPSC) had created about a dozen standards since its creation in 1973 (several of which had been challenged in court), UL had over five hundred published standards.171 A similar phenomenon is observable in the modern pipeline context. Although approximately 73% of PHMSA’s incorporated standards are developed by just three organizations,172 those incorporated standards represent just 3.7%,173 one-tenth of 1%,174 and 2%,175 of those organizations’ respective standards portfolios. This imbalance pervades the U.S. standards system—the thousands of private standards incorporated by reference into federal regulations represent just a tiny fraction of private standards actively in use in the United States.176

On one level, agencies use private standards in regulations instead of creating their own standards because federal law requires it.177 The requirement to use available voluntary consensus standards applies government-wide through the Tech Transfer Act and Circular A-119, and the policy is echoed in myriad, narrower contexts through executive directives178 and statutory provisions that require individual agencies to use private standards, participate in private standards development, and otherwise collaborate with the private sector on standards issues.179 Agency personnel frequently participate in private standards development,180 an activity that federal law encourages and supports.181 One of NIST’s core functions is to “coordinate the use by Federal agencies of private sector standards, emphasizing where possible the use of standards developed by private, consensus organizations.”182 Even PHMSA’s statute expressly contemplates the use of private standards in federal pipeline safety regulations.183

The imperative to integrate private standards into public law is not, however, merely a matter of statutory requirement, executive policy, or political preference. It is a matter of real and practical necessity. Public policy and regulation, not engineering and design, are the domain of federal agencies. Agency officials, particularly those responsible for formulating policy and writing rules, are often lawyers or political appointees who lack the expertise required to develop sound technical specifications. Similarly, the expense of developing standards is beyond the budgetary capacity of most agencies. The APA and other administrative law requirements further important public values, but make it impossible for agencies to act quickly enough to develop standards at the pace required to keep up with technological progress.

In addition, when a federal agency needs to include a technical standard in a regulation, it often discovers that a private standard is, for all intents and purposes, the de facto authoritative standard on the subject. Even when a standard has not been made formally mandatory via governmental adoption or incorporation by reference, that standard may acquire coercive effect by virtue of one or more other forces. Participating in a given industry or technical field often requires intimate knowledge and consistent use of terminology and technical concepts authoritatively defined by private standards. Similarly, success in the marketplace often requires conformity with private standards to facilitate interoperability with parts or accessories manufactured by various other producers, or to satisfy market and consumer demands for reliable assurances of safety, quality, or fitness for purpose.184 Contracts may require conformity to private standards as a way of precisely establishing the parties’ expectations regarding, for example, the quality or characteristics of goods being procured or insured.185 Tort law may look to private standards to define the duty of care, putting some force behind those standards without giving them formal legal effect.