On the Cost of Private Standards in Public Law

55 Pages Posted: 13 Sep 2014 Last revised: 30 May 2015

Date Written: September 11, 2014


Federal agencies often give legal effect to privately authored technical standards that the public can access only by paying a fee. It is widely agreed that this practice impedes public participation in the rulemaking process and makes federal regulatory requirements less transparent. Ideally, private standards that are or may be incorporated into federal regulations would be freely available to the public online. But the problem is multidimensional. Tension between the public right to access the law and the private intellectual property rights of standards developers must be resolved within the overarching context of a longstanding and highly valuable public-private partnership in standards. Any approach to expanding the free online availability of private standards must also preserve the ability of federal agencies to fulfill substantive statutory missions to protect public health and safety.

This article offers a case study of a recent law that prohibited one federal agency, the Pipeline and Hazardous Materials Safety Administration (PHMSA), from incorporating into regulations or guidance any private standard not freely available to the public online. The confined regulatory context makes possible a much needed analysis of the actual cost of private incorporated standards. The data reveal that standards developers voluntarily provided free online access to a surprisingly large share of PHMSA’s standards. The free access mandate produced little marginal improvement over that baseline. Furthermore, it imperiled PHMSA’s ability to protect public safety by preventing the continued use of just a few extremely important standards. In the end, Congress was forced to amend the law.

PHMSA’s experience strongly suggests that simply mandating free online access to private incorporated standards is unworkable. This multidimensional problem requires a more nuanced solution. Collaboration between individual federal agencies and private standards developers holds greater promise for expanding public access without unduly restricting federal agencies’ ability to protect public safety by integrating private standards and public law.

Keywords: administrative law, private standards, incorporation by reference, regulation, pipeline safety, copyright, federal standards policy, standardization, voluntary consensus standards

JEL Classification: K23, O34, O38

Suggested Citation

Bremer, Emily S., On the Cost of Private Standards in Public Law (September 11, 2014). 63 Kan. L. Rev. 279 (2015), Available at SSRN: https://ssrn.com/abstract=2495082

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

HOME PAGE: http://https://law.nd.edu/directory/emily-bremer/

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