Including Full Text of Commercial Standards in the Federal Register, incorporation by reference

What happens when federal agencies rely upon standards developed by standard-setting bodies and communities of practice and incorporate those standards into federal rules? In many cases agencies refer to the standards but do not include the full text of the standards in Federal Register or the Code of Federal Regulations. As a result, those interested in commenting on a particular regulation may not have access to the relevant standard, particularly if it is copyrighted or only accessible for a fee.

The Electronic Frontier Foundation (EFF), the Association of Research Libraries, and OpenTheGovernment.org have sent comments to the Administrative Conference of the US recommending that “all material incorporated by reference — regardless of the stage in the regulatory process, the subject matter of the regulation, or the identity of the regulated entity — should be made freely available, with no purported copyright restrictions and downloadable on a government agency’s website.”

Public.Resource.Org submitted comments to the Office of Management and Budget on making standards that are incorporated by reference into federal regulations widely available to the public without charge. Public.Resource.Org also said that such standards should “be deemed in the public domain rather than subject to copyright restrictions.”

• OpenTheGov and ARL Join EFF in Urging Government to Make all Parts of the Law Easily Available to Everyone (10/24/2011).

  “copyrighted materials, once incorporated into law, should be available for free.” The principles of transparency and accessibility to the law should animate agency decisions in this arena and materials incorporated by reference should be made freely available, online and off, at all times…

• Revised Draft Recommendations of the Administrative Conference of the US on “Incorporation by Reference in Federal Regulations” ACUS.gov (October 2011)
   
• Comments on “Incorporation by Reference in Federal Regulations” (October 21, 2011) To Committee on Administration and Management Administrative Conference of the United States Committee of Administration and Management from Corynne McSherry & Mark Rumold Electronic Frontier Foundation, Prue Adler, Association of Research Libraries, and Patrice McDermott, OpenTheGovernment.org

  We urge ACUS to reject any suggestion that access to the law may be limited where the regulation in question happens to incorporate copyrighted materials. All material incorporated by reference – regardless of the stage in the regulatory process, the subject matter of the regulation, or the identity of the regulated entity – should be made freely available and downloadable on a government agency’s website.

• Incorporation by Reference, A Proposed Rule by the Federal Register Office on 02/27/2012

  On February 13, 2012, the Office of the Federal Register (OFR or we) received a petition to amend our regulations governing the approval of agency requests to incorporate material by reference into the Code of Federal Regulations. We’ve set out the petition in this document. We would like comments on the broad issues raised by this petition.

• Re: Request for Information 2012–7602, 77 FR 19357 submitted by Public.Resource.Org to the Office of Information and Regulatory Affairs of the Office of Management and Budget Washington (April 11, 2012).

See also: Liberating America’s secret, for-pay laws.

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