The Continuing Debate Over Regulatory Incorporation

The Regulatory Review is pleased to publish this series facilitating further debate over the practice of federal agencies incorporating private standards into binding government regulations.  Our previous series, Regulating by Reference, chronicled the surprising reality that “some legally binding rules also originate within private organizations – not the government.”

This practice, known as “incorporation by reference,” takes advantage of industry expertise, but also is perceived to come into tension with general principles of open government because the private standards an agency incorporates by reference are not always readily available to the public.  Despite this alleged tension, Congress passed a law in 1996 requiring federal agencies to incorporate private standards by reference whenever appropriate and practical.

Last year, Professor Peter Strauss of the Columbia University Law School, along with a number of other scholars, petitioned the Office of the Federal Register (OFR), asking the agency to reform the incorporation by reference process.  Professor Strauss argued that agencies should pay for any copyright fees associated with private standards that they incorporate by reference.  On October 2, the OFR responded to Strauss’s petition — but without granting all of its demands.

In this series, The Continuing Debate Over Regulatory Incorporation, The Regulatory Review is excited to publish new essays on the issue by Professor Strauss and attorney Sean Croston.  We begin, first, with a news story by The Regulatory Review writer Jessica Bassett explaining the OFR’s recent action.

OFR Responds to Petition on Incorporation by Reference

October 14, 2013  |  Jessica Bassett

“Public access to binding legal rules lies at the core of an announcement last week by the OFR responding to a petition addressing a practice known as incorporation by reference.”

One Step Forward, Two Steps Back

October 15, 2013  |  Peter L. Strauss

“The OFR response is a disappointment in almost every respect. Its one positive element reflects one of the more important and less controversial aspects of the ACUS recommendations. . . .”

OFR’s Refusal to Regulate References

October 16, 2013  |  Sean Croston

“Unfortunately, a recent announcement by the OFR will do little to increase government transparency or resolve the debate over incorporation by reference.”