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By Stephen Lee
Oct. 22 --A recent proposal to clarify the approval process for including copyrighted standards in federal regulations is being received as a half-measure that leaves many issues unresolved, attorneys tracking the issue told Bloomberg BNA.
At stake is the question of how copyrighted standards that are referenced in a regulation can be made easily available to regulated entities while still honoring standard-setting groups' right to be paid for their work. Transparency advocates insist that all laws should be available for free, but standard-setting organizations say they rely on payment for their survival (42 OSHR 923, 10/18/12).
On Oct. 2, the Office of the Federal Register (OFR) weighed in with a notice of proposed rulemaking (78 Fed. Reg. 60,784) under which OFR must “informally approve” the incorporation of private standards in any regulation during the proposed rule stage.
Currently, agencies don't have to seek approval from OFR until they promulgate a final rule.
The OFR proposal also requires agencies to disclose their efforts to either make the copyrighted materials they reference more reasonably available, or to prepare summaries of the materials they wish to incorporate.
OFR is an agency of the National Archives and Records Administration, responsible for providing Federal Register publications and services to the public.
The agency said the proposal comes in response to a February 2012 petition filed by a group of 24 law professors and advocates.
Peter Strauss, an administrative law professor at Columbia Law School and one of the lead authors of the petition, told Bloomberg BNA Oct. 22 that OFR's proposal was highly disappointing, arguing that it doesn't go nearly far enough to enforce reasonable availability.
According to Strauss, the proposal departs from other law and OFR's existing regulations by expanding the reach of permitted incorporations from technical matters, as is the case now, to any legal obligation whose incorporation by reference would save space in the Federal Register.
Agencies could thus be allowed to create sweeping new legal obligations that the public couldn't learn without buying them by simply referring to them in their regulations, according to Strauss.
Similarly, Emily Bremer, attorney adviser at the Administrative Conference of the United States, told Bloomberg BNA Oct. 21 that the OFR proposal “is mostly a deny, really,” of the 2012 petition, and that the changes it offers are only an incremental step.
“It's not very much,” said Bremer.
“This is basically a punt,” agreed Sean Croston, an attorney with the Federal Trade Commission. “It's saying, 'Everybody should try to work harder and hold hands, and maybe people will come up with solutions on their own. Let's all sing “Kumbaya” and let's hope the agencies will work together.' ”
Croston emphasized that his comments to Bloomberg BNA reflected his personal views only, not the FTC's.
One reason OFR's proposal was so mild could be that lobbyists representing standard-setting organizations have applied pressure on the executive branch and Congress to maintain the status quo, Croston suggested.
“A lot of these standards organizations make money from these things,” Croston said Oct. 22. “So if an agency says, 'We're not going to incorporate your standards,' they're going to lose a big source of money, potentially.”
For example, lobbyists representing the standards organizations helped ease passage of the National Technology Transfer and Advancement Act in 1995, Croston said. That statute requires federal agencies to use voluntary consensus standards, rather than their own in-house standards, if compliance would not be inconsistent with applicable law.
Moreover, the issue has not risen to the general public's attention because most of the standards incorporated by reference are so technical and obscure, Croston said.
“Most people have no idea that this is the way the government works,” he said. “It's pretty messed up.”
At press time, only three public comments had been submitted to the docket.
One of them, by a commenter identified as Jean Public, argued that the regulated public “cannot deal with arcane, obsolete references,” and that the Department of Agriculture “issues references that the average public citizen can never find.”
Despite those complaints, however, Bremer allowed that OFR finds itself caught in an extraordinarily tricky dilemma: If it allows agencies to incorporate by reference, it is accused of undemocratically allowing standards bodies to profit from the law, but if it curtails incorporation by reference, agencies might then be forced to develop their own standards--which would contravene both the National Technology Transfer and Advancement Act and the Office of Management and Budget's 1998 A-119 circular, which sets out guidance on when agencies must use voluntary consensus standards.
For those reasons, Bremer said OFR “probably can't go much further than it has in this proposed rule.”
She further said the determination of what constitutes reasonable availability is “highly context-specific.”
Agencies are often the parties best able to make those determinations, Bremer said.
Strauss also approved of some parts of OFR's proposed regulation.
“For OFR to say, 'We won't publish a notice of proposed rulemaking that doesn't either summarize the regulations to be adopted or make clear how we have worked to get you access to the underlying materials'--that's a healthy step,” he said. “It could be stronger than it is, but it seems to me entirely appropriate for them to have done.”
Moreover, the proposal's provision to require agencies to seek OFR's informal approval during the proposed rule stage is consistent with the Administrative Conference of the United States' December 2011 guidance, Strauss said.
At an Oct. 2 public forum on incorporation by reference, S. Joe Bhatia, president of the American National Standards Institute, announced the launch of a web portal on which 14 standards groups would provide free, read-only access to some of their standards.
“Our goal is to provide a solution to this significant issue that also provides standards development organizations with the flexibility they require to safeguard their ability to develop standards,” American National Standards Institute spokeswoman Elizabeth Neiman told Bloomberg BNA Oct. 22.
Neiman also said the American National Standards Institute broadly supports OFR's proposal, and that disrupting the current economics of standard-setting might disrupt U.S. innovation and economic growth more generally.
Also during the Oct. 2 forum, James Shannon, president of the National Fire Protection Association, noted that underfunded government agencies typically cannot produce standards as quickly as private organizations can.
Yet NFPA, which makes many of its standards available for free, hasn't suffered financially from having done so, Shannon said.
“We did it with some trepidation,” he said. “I'm sure it has hurt sales to some degree, but that's offset by the benefits of making them available. We don't see it as a serious threat. But not all organizations are the same. We're feeling our way with this.”
Still in the offing is OMB's long-awaited update to its A-119 circular. The revision may include provisions that will highlight agencies' responsibility for ensuring materials are reasonably available, Bremer speculated.
Although many of the real-world implications of OFR's proposal remain murky, Bremer said there is time for them to be worked out.
For example, the definitions of some of the proposal's terms may be clarified during the rulemaking process, Bremer said. Another encouraging sign is that OFR has said it might revise its guidance documents to include more of the Administrative Conference of the United States' 2011 recommendations on incorporation by reference, which Bremer said “might actually have a real impact.”
The increasing level of awareness of the issue is an important first step, Bremer added.
“Agencies have been very open and conscientious about the need to assure reasonable availability once they're aware of the issue,” she said.
At a deeper level, the success or failure of OFR's proposed regulation will depend on agencies being proactive and standard-setting organizations being receptive, Bremer said.
“The attitude change I've seen in the last couple of years suggests that it can be a successful effort, but I think it can be a little messy getting there,” she said.
OFR is accepting comments on its proposed rule until Dec. 31. Comments may be submitted to the Office of the Federal Register, The National Archives and Records Administration, 8601 Adelphi Road, College Park, Md., 20740, online at http://www.regulations.gov (Docket No. OFR-2013-0001), or by e-mail to email@example.com.
To contact the reporter on this story: Stephen Lee in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Jim Stimson at email@example.com
The Administrative Conference of the United States' December 2011 guidance on incorporation by reference is available at http://www.acus.gov/sites/default/files/Recommendation-2011-5-Incorporation-by-Reference_0.pdf.
The Office of Management and Budget's A-119 circular is available at http://www.whitehouse.gov/omb/circulars_a119.
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