Most everyone is familiar with the legal principle that ignorance of the law excuses no one. But what if the public cannot access or consult a particular law?
Public access to binding legal rules lies at the core of a recent announcement by the Office of the Federal Register (OFR) responding to a petition addressing a practice known as incorporation by reference. A government agency incorporates by reference when it “adopts” a standard developed by a private organization as part of a government regulation. In its recent announcement, OFR concluded that public access to the law does not require private standards that are incorporated to be accessible online—or even available to the public for free.
Incorporated rules are legally binding; however, these privately-developed standards are often copyrighted, limiting the ability of the government to publish them on agency websites or in the Federal Register. Thus, in order to access the content of these rules, a citizen could be required to visit a National Archives and Records Administration (NARA) facility or contact the organization that developed the standard. In many cases, members of the public can be required to pay to access the incorporated content found in government regulations.
OFR’s recent announcement responds to a petition filed with the Office in 2012 by administrative law scholar Peter L. Strauss. The petition, also signed by a large number of other scholars, called upon OFR to define what the agency means when it requires incorporated material to be “reasonably available.” The petition also suggested that, in order to be “reasonably available,” incorporated material must be available to the public free of charge and on the Internet. In addition, it urged that agencies provide open access to proposed incorporated text before they finalize any incorporation by reference.
Earlier this year, contributors to the RegBlog series Regulating by Reference expressed related concerns about the difficulty and affordability of accessing incorporated rules. For example, legal scholar Nina A. Mendelson, a signatory on the 2012 petition, argues that the cost of accessing incorporated material, which can cost hundreds, if not thousands, of dollars for one standard, impedes the public from knowing, understanding, and complying with the law and making informed decisions associated with the law. Mendelson further argues that the current incorporation policy limits agency accountability and sends a “damaging message” that the United States government is “hostile to the concept that a democratic government must govern publicly.”
While OFR’s response to the legal scholars’ petition responds to several issues, a key question it addresses is whether incorporated material must be accessible online and free of charge in order to be “reasonably accessible.” OFR concludes it does not.
According to OFR, it is up to the entity impacted by an incorporated rule to collaborate with federal agencies to “ensure” that the entity can access the incorporated material. OFR states that it “[does] not have the experience to determine how access works best for a particular regulated entity or industry.”
In defending its position, OFR points out that even the Federal Register—the government newspaper in which all new agency rules are published—is not “universally free” of charge —nor is it required to be. The statute authorizing the Federal Register reporting system permits the Administrative Committee for the Federal Register (ACFR) to charge for a subscription to the printed Federal Register, and the ACFR does so. In fact, an annual subscription costs $929. Additionally, although the U.S. Government Printing Office (GPO) currently offers free online access to the Federal Register, the law allows the GPO to charge a fee “for online access to GPO publications.”
In response to concerns that transparency demands free access to the law, OFR states: “Transparency does not automatically mean free access. It is the long-standing policy of the Federal government to recoup its costs.”
OFR recognizes that some interested parties may be unable to pay for access to incorporated rules. However, OFR also recognizes that, were a federal agency required to negotiate with a private organization for a license to publish incorporated material, the costs to the government could be “substantial.”
OFR also asserts that it does not have the authority or the expertise “to tell another agency how they can best reach a rulemaking decision” or “to direct another agency on substantive rulemaking issues,” like what material to incorporate. OFR suggests that to require agencies to limit their incorporated references to free, online material could prevent such agencies “from using material [that] their subject matter experts have decided is the best option.”
Instead of acceding to all the requests in the administrative scholars’ petition, OFR announced a proposal to require that any federal agency requesting to incorporate material at both the proposed and final rule stages provide the public with notice about how the agency made the material “reasonably available.” Alternatively, rather than explaining how the material was made “reasonably available” at the proposed rule stage, OFR proposes to allow the agencyto provide a summary of the incorporated material in its Federal Register notice for the underlying rule. If adopted, OFR’s proposal would also require agencies to publish instructions on how members of the public can obtain incorporated material as part of the final rule.
The post is part of a three-part series on The Continuing Debate Over Regulatory Incorporation.