Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards
Nina A. Mendelson
University of Michigan Law School
May 13, 2013
Michigan Law Review, Forthcoming
U of Michigan Public Law Research Paper, No. 358
To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” These rules encompass water sampling protocols, bike helmet safety standards, and pipeline spill notification requirements; they are written by private organizations from the American Public Health Association to the American Petroleum Institute. An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.
In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. In the setting of incorporated-by-reference ("IBR") rules, this article evaluates several other considerations, including notice to those who expect to benefit from government programs and the way government regulates others. The text of these rules might affect the choices made, for example, by consumers of dangerous products, neighbors of gas pipelines, and Medicare recipients. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. Given the institutional dynamics, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Existing agency and private organizational procedures may not suffice to avoid potential rulemaking pitfalls, and agencies may face significant incentives to pursue incorporation of less-than-perfect private standards. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law generally, significantly more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.
Accepted Paper Series
Date posted: May 14, 2013 ; Last revised: November 18, 2013
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