Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference

Abstract

When an agency incorporates by reference, it promulgates a rule that identifies—but does not reprint—material already published elsewhere. The incorporated materials thus become binding law without actually being printed in the agency's regulations. Sometimes the incorporated materials are privately developed technical standards, which are often copyrighted and available only for a fee. This restriction on access undermines transparency and public participation in the rulemaking process. Finding a solution is challenging because the problem is multidimensional, implicating public policy in the areas of administrative law, federal standards law and policy, and copyright.

This teaching guide is part of module that offers law faculty the information, plans, and resources needed to introduce students to incorporation by reference. The issue offers a versatile teaching tool that can be used to engage students—in long or short form—in various law school courses in the areas of Administrative Law, Regulatory Law & Policy, Law & Technology, and Legal Theory.

Keywords: incorporation by reference, standards, voluntary consensus standards, regulations, rulemaking, publication requirements, copyright, intellectual property, takings, statutory interpretation, teaching guide

JEL Classification: K23