Incorporation by Reference in an Open-Government Age

Abstract

In a little known but much used regulatory practice, incorporation by reference, the values of open government and collaborative governance unexpectedly clash. The practice allows agencies to fulfill the obligation to publish regulations by referring to material published elsewhere. It is the preferred method for implementing a strong federal policy favoring the use of privately-created voluntary consensus standards in regulations. Such standards are often copyrighted, with copies sold to support the private standard development process. The consequence is that citizens may have to pay to see the law. In the age of open government, the traditional solution of providing copies for public inspection at agency offices is inadequate. But identifying the problem is easier than fashioning a solution: copyright prevents agencies from freely posting standards online, buying out the copyright is impractical, and other potential solutions threaten to undermine the valuable public-private partnership in standards.

Empirically grounded in the experience of agency personnel and standard developers, this Article urges a collaborative solution to incorporation by reference’s public access problem. It urges agencies to work together with standard developers and use technological solutions to make incorporated materials more available while preserving the value of the copyright. This balanced approach may be but a first step. But it holds significant promise for improving transparency and public participation in the regulatory process, while preserving a federal standards policy designed to capture the benefits of collaborative governance.

Moving beyond the thorny question of public access, the Article addresses other challenges agencies face when incorporating by reference. It identifies approaches agencies can use to keep regulations up-to-date as incorporated standards are revised to reflect evolving technical knowledge. It also provides guidance to agencies as they navigate the process for securing approval to incorporate by reference and brings attention to a few hidden dangers in drafting regulations that incorporate by reference.

Keywords: incorporation by reference, regulations, publication requirements, voluntary consensus standards, administrative law, regulatory policy, emily s. bremer, emily bremer

JEL Classification: K23