No alt causes. Copyright is key.

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/

One could also object that addressing SDO access fees is unnecessary since they hardly represent the only obstacle to an interested citizen’s ability to understand the law or enforce her legal rights. Again, financial resources can indisputably matter to an individual’s ability to effectuate her legal rights. In litigation, for example, representation by counsel can often affect the outcome.310 Substantial numbers of individuals with legal issues ranging from child custody to potential deportation to foreclosure lack resources and access to low-cost legal services and are thus compelled to represent themselves, generally to their detriment.311 Relatedly, some have commented that incorporated standards tend to be “technical” and thus are not likely to be accessible without outside expertise.

We might further group these objections into two points. First, an individual may need resources to understand the contents of a (possibly technical) standard. That expertise may not come cheap. Second, an individual may need resources to invoke any useful mechanism making practical use of the contents, once she understands them. Thus, even if access to the contents of the law were free and widespread, an individual reading regulatory standards could still face significant financial obstacles to fully utilizing the information. Given each of these resource demands, perhaps we might view the access prices charged—whether $50 or $300—as inconsequential. Meanwhile, at the other end of the continuum, large corporations charged with compliance or even large nonprofits with significant resources might also find access costs trivial.’

Concededly, the individual looking at “technical” standards might need expertise to understand the text, including legal or scientific expertise. Standards incorporating testing protocols for environmental performance properties of insulation for wire and cable,312 as with published federal rules on measuring lead in gasoline,313 may simply state a technical professional consensus on testing approaches. Such standards may be inaccessible to even the college-educated, unless the reader possesses advanced training in chemistry or physics. To the extent that the reader lacks relevant knowledge, hiring an expert may be costly.

But some members of the public will have relevant expertise, as the comments filed to the OFR demonstrate. And as Krosnick’s work suggests, the strong interest of even a relatively small group of individuals may prompt policymakers to carefully consider their decisions. Certainly, we should put aside the argument that these standards are not of interest to the public at large.314 So-called “technical” standards often function to define substantive policy, making them highly likely to be of broader interest even if standards that are truly definitional might be of less interest.315 The ANSI standard on “[b]iometric data interchange formats,”316 incorporated into federal requirements for driver’s licenses, may sound technical in the colloquial sense, but the type of biometric data the government collects has generally raised concerns with privacy advocates.317 At $199, however, its price makes it accessible only to a few.318 Moreover, many standards, such as OSHA’s incorporation of ANSI safety standards for ladders, are expressly aimed at achieving policy goals.319 Still more of the “technical” incorporated standards clearly have the effect of defining substantive policy, as with the use of private pharmaceutical compendia to define the extent of Medicare coverage for off-label uses of prescription drugs.320

Many such rules may not even be “technical” in the sense that they require advanced training or expertise to comprehend. Agencies incorporate plenty of material that is phrased in ordinary language. The API’s standard for public awareness in the event of a pipeline spill is an obvious example, phrased (as it should be) in terms equally comprehensible to pipeline operators, first responders, and community members.321 The ASTM standards for bicycle helmet safety, incorporated by reference into CPSC helmet safety standards, are also accessible; they provide, for example, that helmets are to be “dropped onto [a] flat anvil from a theoretical drop height of 2 m.”322 Nor do agencies appear particularly limited in their ability to incorporate nontechnical standards, as noted. In fact, Circular No. A-119 encourages agencies to adopt voluntary standards in large part because they may represent a “consensus.”323

In short, many of these standards are substantive and may not even be technical in the colloquial sense. Further, the OFR, as noted, is expressly proposing to expand the use of IBR standards to address nontechnical matters by eliminating the current regulatory requirement that an IBR rule consist of “data, criteria, standards, specifications, techniques, illustrations, or similar material.”324 This requirement has been commonly understood to mean that IBR standards must be “technical,” although the term “standards” clearly sweeps more broadly. For example, using current rules, the OFR has approved incorporation of public awareness requirements for pipeline operation. And finally, the evidence to date confirms that individual citizens are interested in reading current standards, undeterred by their purportedly technical quality.325