Incorporation by reference in an open-government age

Harvard Journal of Law and Public Policy

Volumn 36, Issue 1, 2013, Pages 131-210

  Bremer, Emily S ^a,b  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

^b NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 84876273634     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (282)

1. 5 U.S.C. § 552(a)(1) (2006). The CFR is a special edition of the Federal Register that "present[s] a compact and practical code . . . contain[ing] each Federal regulation of general applicability and legal effect."
2. 1 C.F.R. § 8.1(a);
3. accord 44 U.S.C. § 1510.
4. This requirement, that regulations be centrally published by the Government Printing Office, was imposed in 1935 in response to a Supreme Court case involving an agency's attempt to enforce regulations that "did not exist." Panama Ref. Co. v. Ryan, 293 U.S. 388, 412 (1935).
5. See generally Erwin N. Griswold, Government in Ignorance of the Law-A Plea for Better Publication of Executive Legislation, 48 HARV. L. REV. 198 (1934) (arguing for a centralized publication system to address the significant problem that agency pronouncements were often unavailable and unknown even to the government officials charged with enforcing them).
6. 5 U.S.C. § 552(a)(1);
7. see also, e.g., Appalachian Power Co. v. Train, 566 F.2d 451, 455 (4th Cir. 1977) (holding that a document that the EPA intended to incorporate by reference into a regulation was "not a validly issued part of the regulations, because it ha[d] not been published in the Federal Register, nor ha[d] the procedural requisites for incorporation by reference been complied with").
8. See 5 U.S.C. § 552(a)(1).
9. See 1 C.F.R. § 51.7(a)(3);
10. see also S. REP. NO. 88-1219, at 11 (1964) ("[T]here have been few complaints about omission from the Federal Register of necessary official material. In fact, what complaints there have been have been more on the side of too much publication rather than too little.").
11. See generally Memorandum from Ramsay Clark, Attorney Gen., to Executive Departments and Agencies on the Public Information Section of the Administrative Procedure Act (June 1967), available at http://www.justice.gov/oip/67agmemo.htm
12. explaining the purpose and meaning of the 1967 amendments to 5 U.S.C. § 552.
13. A technical standard "pertain[s] to 'products and processes, such as the size, strength, or technical performance of a product, process or material' and as such may be incorporated into a regulation." OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, OMB CIRCULAR NO. A-119, FEDERAL PARTICIPATION IN THE DEVELOPMENT AND USE OF VOLUNTARY CONSENSUS STANDARDS AND IN CONFORMITY ASSESSMENT ACTIVITIES, 63 Fed. Reg. 8546, 8549 (Feb. 19, 1998) [hereinafter CIRCULAR A-119], available at http://standards.gov/a119.cfm
14. citing 142 CONG. REC. S1080 (daily ed. Feb. 7, 1996) (statement of Sen. Jay Rockefeller). In contrast, a regulatory standard "establishes overall regulatory goals or outcomes" and should be created by the agency and not incorporated by reference.
15. See National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. No. 104-113, § 12(d), 110 Stat. 775 (1996)
16. codified at scattered sections of 15 U.S.C. (2006), available at http://standards.gov/standards-gov/nttaa.cfm.
17. See, e.g., Lisa Blomgren Bingham, The Next Generation of Administrative Law: Building the Legal Infrastructure for Collaborative Governance, 2010 WIS. L. REV. 297, 334 ("Collaborative governance can take various forms, from network governance, public-private partnerships, and contracts, to deliberative democracy and innovative online tools for civic engagement. However, for people to collaborate and participate meaningfully in governance, they must have information.");
18. Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 638-43 (2000) (examining the hazards and benefits of using privately developed voluntary consensus standards in federal regulations).
19. See generally Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997) (arguing that administrative law fails to adequately appreciate the role of private parties in the regulatory process).
20. Transcript of the 55th Plenary Session of the Administrative Conference of the United States at 39 (Dec. 8, 2011) (on file with the Administrative Conference).
21. Other scholars have examined the costs and benefits of incorporation by reference in legislation, primarily at the state level. See F. Scott Boyd, Looking Glass Law: Legislation by Reference in the States, 68 LA. L. REV. 1201 (2008);
22. Ernest E. Means, Statutory Cross References-The "Loose Cannon" of Statutory Construction in Florida, 9 FLA. ST. U. L. REV. 1 (1981);
23. Arie Poldervaart, Legislation by Reference-A Statutory Jungle, 38 IOWA L. REV. 705 (1953);
24. R. Perry Sentell, Jr., "Reference Statutes"- Borrow Now and Pay Later?, 10 GA. L. REV. 153 (1975);
25. Horace Emerson Read, Is Referential Legislation Worth While?, 25 MINN. L. REV. 261 (1941);
26. cf. Jeanelle R. Robson, Casenote, "Lazarus Come Forth. And He That Was Dead Came Forth." An Examination of the Lazarus Rule: Fisher v. City of Grand Island, 26 CREIGHTON L. REV. 221 (1992) (examining a rule of construction for statutes that refer to other statutes that are later repealed).
27. See, e.g., Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685, 4685 (Jan. 21, 2009) (establishing a policy that government should be transparent, participatory, and collaborative).
28. See generally Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 EMORY L.J. 433 (2004) (exploring the promise of electronic tools to address rulemaking's democratic deficit).
29. See 29 C.F.R. § 1910.179(b)(1) (2012).
30. See, e.g., Joseph Farrell, Standardization and Intellectual Property, 30 JURIMETRICS J. 35, 44-45 (1989) (explaining how IP rights can reduce the likelihood of consensus and delay standard setting);
31. Mark A. Lemley, Intellectual Property Rights and Standard-Setting Organizations, 90 CALIF. L. REV. 1889, 1901 (2002) (examining issues that arise when a standard-setting organization "adopts (or fails to adopt) a standard that is covered in whole or in part by an IP right").
32. See, e.g., Paul R. Verkuil, Public Law Limitations on Privatization of Government Functions, 84 N.C. L. REV. 397, 434-36 (2006) (explaining how laws governing federal government use of privately created standards mitigate antitrust issues);
33. Tyler R.T. Wolf, Note, Existing in a Legal Limbo: The Precarious Legal Position of Standards- Development Organizations, 65 WASH. & LEE L. REV. 807, 839-48 (2008) (examining antitrust issues in standards setting).
34. Standards for Business Practices and Communication Protocols for Public Utilities, 74 Fed. Reg. 63,288, 63,302 (Dec. 3, 2009)
35. to be codified at 18 C.F.R. pt. 38.
36. See Robert W. Hamilton, The Role of Nongovernmental Standards in the Development of Mandatory Federal Standards Affecting Safety or Health, 56 TEX. L. REV. 1329, 1379-86 (1978).
37. 5 U.S.C. § 552(a)(1) (2006).
38. See 1 C.F.R. § 51 (2012).
39. see also 5 U.S.C. § 553(a)(1) (2006).
40. 1 C.F.R. § 51.7(a)(4)(i).
41. See Amy Bunk, Office of the Fed. Register, Remarks at the 55th Plenary Session of the Administrative Conference of the United States 75 (Dec. 8, 2011) (transcript on file with the Administrative Conference of the United States).
42. See Approval Procedures for Incorporation by Reference, 47 Fed. Reg. 34,107 (Aug. 6, 1982)
43. codified at 1 C.F.R. pt. 51.
44. Pub. L. No. 104-231, 110 Stat. 3048.
45. Pub. L. No. 105-277, §§ 1701-1710, 112 Stat. 2681, 2681-749-2681-751
46. codified at 44 U.S.C. § 3504 (2006).
47. Pub. L. No. 107-347, 116 Stat. 2899
48. codified in scattered sections of 44 U.S.C. (2006).
49. Compare 5 U.S.C. § 552(a)(1) (providing that properly incorporated material "is deemed published" for purposes of the rule that "a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published")
50. 44 U.S.C. § 1510(a) (defining the CFR as a "complete codification[] of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register").
51. see also NTTAA, § 12(d)(1), Pub. L. No. 104-112, 110 Stat. 775, 783 (1996)
52. codified as a note to 15 U.S.C. § 272 (2006) ("[A]ll Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies").
53. See, e.g., 40 C.F.R. § 88.104-94(k)(2) (1995) ("The standards in this section shall be administered and enforced in accordance with the California Regulatory Requirements Applicable to the Clean Fuel Fleet and California Pilot Programs, April 1, 1994, which are incorporated by reference.").
54. See 42 U.S.C. § 7410 (2006).
55. See, e.g., 40 C.F.R. §§ 52.1020, 52.1037 (2011).
56. See, e.g., 16 C.F.R. § 1207.11(a) (2012) (referencing the Department of Commerce's Statistical Abstract of the United States 1973 in the CPSC's safety standard for swimming pool slides);
57. 29 C.F.R. § 1926.1000(f)(3) (2012) (incorporating safety and health regulations for construction published by the Bureau of Mines into OSHA regulations).
58. See 29 C.F.R. §§ 1926.200(g), 1926.202 (2011).
59. See Airworthiness Directives (ADs): Incorporation by Reference, FED. AVIATION ADMIN., http://www.faa.gov/aircraft/air-cert/continued-operation/ad/ type-incorp/ (last visited Nov. 22, 2012);
60. Airworthiness Directives; The Boeing Company Airplanes, 77 Fed. Reg. 60, 889-91 (Oct. 5, 2012)
61. to be codified at 14 C.F.R. pt. 39.
62. 14 C.F.R. § 39.3 (2012).
63. 10 C.F.R. § 52.1(a) (2012).
64. see also National Technology Transfer and Advancement Act (NTTAA) § 12, Pub. L. No. 104-113, 110 Stat. 775, 782-83 (1996)
65. codified as part of 15 U.S.C. § 272 (2006).
66. An additional component of this regime is the Trade Agreements Act of 1979, Pub. L. No. 96-39, 93 Stat. 144 (1979)
67. codified at ch. 13 of 19 U.S.C. (2006), but it is less relevant to the issue of incorporation by reference and will not be discussed in detail in this Article. It is more relevant, however, to an Administrative Conference Recommendation adopted on the same day as Recommendation 2011-5.
68. See Recommendation 2011-6, International Regulatory Cooperation, 77 Fed. Reg. 2257-2261 (Jan. 17, 2012).
69. see also William P. Boswell and James P. Cargas, North American Energy Standards Board: Legal and Administrative Underpinnings of a Consensus Based Organization, 27 ENERGY L.J. 147, 162 (2006) ("Congress has expressly required all federal agencies to use technical standards developed by voluntary consensus standards organizations as a means to carry out policy objectives or activities."). The NTTAA further directs federal agencies to "consult with voluntary, private sector, consensus standards bodies" and "participate with such bodies in the development of technical standards" when doing so "is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources."
70. In early 2012, OMB issued a request for information on the operation of the Circular, suggesting that it might propose changes to the circular to address, among other things, the issue of incorporation by reference. See Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, 77 Fed. Reg. 19,357 (Mar. 30, 2012);
71. see also Letter from the Office of the Chairman of the Admin. Conference of the United States to Hon. Cass R. Sunstein, Adm'r, Office of Info. & Regulatory Affairs, Office of Mgmt. & Budget (Apr. 30, 2012), available at http://www.acus.gov/wp-content/uploads/downloads/2012/04/Final-ACUSResponse- to-OMB-RFI-4-30-12.pdf (commenting on the request for information). As of this writing, OMB has not yet proposed changes to Circular A-119.
72. citing Proposed OMB Circular on Federal Interaction with Voluntary Consensus Standards-Developing Bodies, 43 Fed. Reg. 48 (1978);
73. 41 Fed. Reg. 536723 (1976).
74. See, e.g., 15 U.S.C. § 2056b(a) (2008) (providing that "the provisions of ASTM International Standard F963-07 Consumer Safety Specifications for Toy Safety . . . shall be considered to be consumer product safety standards issued by the [CPSC]");
75. 42 U.S.C. § 17021 (2012) (using ASTM standards in defining and establishing labeling requirements for biomass-based diesel fuels).
76. 44 Fed. Reg. 1357 (Jan. 5, 1979) [hereinafter Recommendation 78-4].
77. See NIST, Regulatory SIBR (P-SIBR) Statistics, STANDARDS INCORPORATED BY REFERENCE (SIBR) DATABASE, http://standards.gov/sibr/query/index.cfm?fuseaction= rsibr.total-regulatory-sibr (last visited Nov. 22, 2012).
78. NIST, STANDARDS INCORPORATED BY REFERENCE (SIBR) DATABASE, http://standards.gov/sibr/query/index.cfm (last visited Nov. 22, 2012).
79. Rebecca Day & Tom Mielke, Incorporation by Reference: Using external expertise to make Coast Guard regulations more efficient, PROCEEDINGS, available at http://www.uscg.mil/proceedings/spring2010/articles/26-Mielke,Day- Incorporati onByReference.pdf;
80. see, e.g., 46 C.F.R. § 30.01-3 (2012) (listing standards incorporated by reference into regulations applicable to tank vessels);
81. See 46 C.F.R. §§ 160.002-1, 160.005-1 (2012).
82. See 18 C.F.R. § 38.2;
83. see also Standards for Business Practices and Communication Protocols for Public Utilities, 74 Fed. Reg. 63,287, 63,289 (Dec. 3, 2009)
84. to be codified at 18 C.F.R. pt. 38 ("NAESB is a non-profit standards development organization established in January 2002 that serves as an industry forum for the development of business practice standards that promote a seamless marketplace for wholesale and retail natural gas and electricity.").
85. See, e.g., 10 C.F.R. § 50.55a (2012).
86. See, e.g., 16 C.F.R. § 1420.3 (2012) (referencing an ANSI standard in a safety standard for all terrain vehicles).
87. See, e.g., 29 C.F.R. § 1910.6 (2012) (identifying various standards incorporated by reference into OSHA regulations).
88. See 1 C.F.R. §§ 51.9(b)(4), 5.2 (2012).
89. See, e.g., 1 C.F.R. § 51.7(a)(2) (2012) (illustrating the type of information that could make a regulation less readable).
90. See, e.g., 47 C.F.R. § 17.23 (2011) ("[E]ach new or altered antenna structure . . . must conform to the FAA's painting and lighting recommendations set forth on the structure's FAA determination of 'no hazard,' as referenced in . . . FAA Advisory Circulars.").
91. See 29 C.F.R. § 1926.1000(f)(2)-(3) (2012).
92. See 17 U.S.C. § 105 (2011) ("Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.").
93. See, e.g., 40 C.F.R. § 88.104-94(k)(2) (1995).
94. See Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002).
95. See 28 U.S.C. § 1498(b) (2006).
96. See, e.g., Production Measurement Documents Incorporated by Reference, 75 Fed. Reg. 72,761 (proposed Nov. 26, 2010)
97. to be codified at 30 C.F.R. pt. 250 ("When a copyrighted technical industry standard is incorporated by reference into our regulations, [Bureau of Ocean Energy Management, Regulation and Enforcement] is obligated to observe and protect that copyright. BOEMRE provides members of the public with Web site addresses where these standards may be accessed for viewing-sometimes for free and sometimes for a fee. The decision to charge a fee is decided by standard developing organizations.");
98. Product Noise Labeling Hearing Protection Devices, 74 Fed. Reg. 39,150, 39,153 (proposed Aug. 5, 2009)
99. codified at 40 C.F.R. pt. 211 ("In recognition of the copyrights that protect these standards, the Agency is 'incorporating by reference,' into subpart B, the following ANSI and IEC standards.").
100. Indeed, the Federal Register and CFR were created in 1935, in response to a Supreme Court decision involving an agency's attempt to enforce regulations that, as it turned out, did not exist. See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).
101. See generally Erwin N. Griswold, Government in Ignorance of the Law-A Plea for Better Publication of Executive Legislation, 48 HARV. L. REV. 198 (1934) (explaining the problem solved by the Federal Register Act);
102. H. COMM. ON JUDICIARY, 74TH CONG., PUBLICATION OF GOVERNMENTAL RULES AND REGULATIONS, H. Rep. No. 74-280, at 2 (1935) ("[R]ules and regulations frequently appear in separate paper pamphlets, some printed on single sheets of paper and easily lost. Any attempt to compile a complete private collection of [them] . . . would be wellnigh impossible. No law library, public or private, contains them all. Officials of the department issuing them frequently do not know all of their own regulations.").
103. Bunge Corp. v. United States, 5 Cl. Ct. 511, 523 (1984) (emphasis added);
104. see also Pitts v. United States, 599 F.2d 1103, 1108 (1st Cir. 1979) ("The purpose of publication in the Federal Register is public guidance.");
105. Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (holding that "the requirement for publication attaches only to matters which if not published would adversely affect a member of the public.").
106. 5 U.S.C. § 552(a) (2006);
107. see also 1 C.F.R. § 51.7(a)(4) (2012) (restating the statutory language with the additional requirement that the material be "usable by the class of persons affected");
108. PPG Indus., Inc. v. Costle, 659 F.2d 1239, 1250 (D.C. Cir. 1981) (explaining that "[i]f a required definition or procedure is part of a rule, it must be published or incorporated by reference in the Federal Register").
109. See, e.g., Appalachian Power Co. v. Train, 566 F.2d 451, 455 (4th Cir. 1977).
110. 5 U.S.C. § 552(a)(1) (2006).
111. See 1 C.F.R. § 51.1(a), 51.7(a)(4) (2012).
112. In early 2012, OFR put out for public comment a petition requesting significant changes to OFR's incorporation by reference regulations. See Incorporation by Reference, 77 Fed. Reg. 11,414 (Feb. 27, 2012)
113. to be codified at 1 C.F.R. pt. 51. Among other things, the petition urged OFR to take greater responsibility for ensuring that incorporated materials are freely available online.
114. The comment period closed on June 1, 2012, see Incorporation by Reference, 77 Fed. Reg. 16,761 (Mar. 22, 2012)
115. to be codified at 1 C.F.R. pt. 51, and as of this writing, OFR had not yet acted on the petition.
116. See generally Letter from the Office of the Chairman of the Admin. Conference of the United States, to Michael L. White, Acting Dir., Office of the Fed. Register (June 1, 2012), available at http://www.acus.gov/wp-content/ uploads/downloads/ 2012/06/Final-ACUS-Response-to-OFR-Petition-6-1-12.pdf (commenting on the incorporation by reference petition).
117. NIMMER ON COPYRIGHT § 13.05 (2011).
118. See 17 U.S.C. § 107 (2006).
119. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (alteration in original)
120. quoting Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks omitted).
121. but see Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996) (Birch, J.) ("Although the traditional approach is to view 'fair use' as an affirmative defense, this writer, speaking only for himself, is of the opinion that it is better viewed as a right granted by the Copyright Act of 1976," but "[r]egardless . . . , it is clear that the burden of proving fair use is always on the putative infringer.").
122. 17 U.S.C. § 107.
123. See, e.g., Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir. 1982) (holding a local government made "fair use" of copyrighted material when it used "abbreviated copies" of an adult film as evidence in a nuisance abatement proceeding, reasoning the "use was neither commercially exploitive of the copyright, nor commercially exploitive of the copyright holder's market");
124. 4 FOIA UPDATE, no. 4, 1983, available at http://www.justice.gov/oip/foia- updates/Vol-IV-4/page3.htm ("[T]he position of the Department of Justice is that the release of [nonexempt copyrighted] materials under the FOIA is a defensible 'fair use.'").
125. Whether and Under What Circumstances Government Reproduction of Copyrighted Materials is a Noninfringing "Fair Use" Under Section 107 of the Copyright Act of 1976, 1999 WL 33490240 (O.L.C. Apr. 30, 1999), available at http://www.justice.gov/olc/pincusfinal430.htm (last visited Nov. 22, 2011);
126. See, e.g., Harper & Row Publ'rs, Inc. v. Nation Enters., 471 U.S. 539, 549 (1985) ("Section 107 requires a case-by-case determination whether a particular use is fair, and the statute notes four nonexclusive factors to be considered. This approach was 'intended to restate the [pre-existing] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.'"
127. quoting H. R. Rep. No. 94-1476, 66 (1976) (alteration in original).
128. See, e.g., Gaylord v. United States, 595 F.3d 1364, 1372 (Fed. Cir. 2010) ("Because the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.") (internal quotation marks omitted).
129. Gaylord, 595 F.3d at 1373 (internal quotation marks omitted).
130. quoting 17 U.S.C. § 107 (2006).
131. See Coll. Entrance Examination Bd. v. Pataki, 889 F. Supp. 554, 568 (N.D.N.Y. 1995).
132. Coll. Entrance Examination Bd., 889 F. Supp. at 564 (explaining the state law required copyright holders to disclose test forms and questions and "classifie[d] these disclosed materials as public records and, thereby, subject[ed] them to disclosure to, and reproduction by, the public").
133. Coll. Entrance Examination Bd., 889 F. Supp. at 575.
134. See Gaylord v. United States, 595 F.3d 1364, 1374 (Fed Cir. 2010);
135. Coll. Entrance Examination Bd., 889 F. Supp. at 567-68.
136. See Coll. Entrance Examination Bd., 889 F. Supp. at 568.
137. Gaylord, 595 F.3d at 1374
138. quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
139. Coll. Entrance Examination Bd., 889 F. Supp. at 569 (internal quotation marks omitted).
140. Gaylord, 595 F.3d at 1375
141. quoting Campbell, 510 U.S. at 586.
142. see also, e.g., Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 926 (2d Cir. 1994) (explaining that although a conclusion that the defendant has reproduced an entire work "does not preclude a finding of fair use, it militates against such a finding, and weights the third factor in favor of the publishers"
143. citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984).
144. 17 U.S.C. § 107(4) (2006).
145. Gaylord, 595 F.3d at 1375
146. quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590.
147. 293 F.3d 791 (5th Cir. 2002).
148. citing and discussing Banks v. Manchester, 128 U.S. 244 (1888);
149. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).
150. 628 F.2d 730, 732-35 (1st Cir. 1980).
151. see also John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 38-40 (1st Cir. 2003) (explaining that BOCA left open the difficult question of copyright protection for materials incorporated by reference into law, but continuing to leave the question open because the issue before the court, copyright for materials referenced in government contracts, did not raise the same concerns);
152. Veeck, 293 F.3d at 798-800 (citing and discussing BOCA).
153. See Veeck, 293 F.3d at 803-04.
154. 44 F.3d 61 (2d Cir. 1994).
155. 121 F.3d 516 (9th Cir. 1997).
156. Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 804-06 (5th Cir. 2002).
157. See Veeck, 293 F.3d at 804.
158. BUC Int'l Corp. v. Int'l Yacht Council Ltd., 489 F.3d 1129, 1143 (11th Cir. 2007).
159. 17 U.S.C. § 102(b) (2006);
160. see N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 497 F.3d 109, 116 (2d Cir. 2007).
161. N.Y. Mercantile Exch., Inc., 497 F.3d at 116-17
162. quoting Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir. 1991).
163. See Veeck, 293 F.3d at 801-02.
164. Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674, 688 n.12 (2d Cir. 1998)
165. quoting Kregos, 937 F.2d at 716 (Sweet, J., concurring in part and dissenting in part).
166. Underlying this point is a fundamental disagreement among courts and commenters regarding the very nature of the merger doctrine. Is it a question of copyrightability or a defense to infringement? See generally Kregos, 937 F.2d at 714- 16 (Sweet, J., concurring in part and dissenting in part).
167. CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61, 74 (2d Cir. 1994).
168. Lawrence A. Cunningham, Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, 104 MICH. L. REV. 291, 297 (2005).
169. See Tyler R.T. Wolf, Note, Existing in a Legal Limbo: The Precarious Legal Position of Standards-Development Organizations, 65 WASH. & LEE L. REV. 807, 813-14 (2008).
170. See Paul T. Jaeger & John Carlo Bertot, Transparency and technological change: Ensuring equal and sustained public access to government information, 27 GOV'T INFO. Q., 371, 372 (2010).
171. Sharon S. Dawes, Stewardship and usefulness: Policy principles for information- based transparency, 27 GOV'T INFO. Q. 377, 378 (2010).
172. See, e.g., Pamela Samuelson, Questioning Copyrights in Standards, 48 B.C. L. REV. 193, 224 (2007);
173. Brendan Greeley, One Man's Quest to Make Information Free, BLOOMBERG BUSINESS WEEK, Apr. 12, 2012, http://www.businessweek.com/ articles/2012-04-12/ one-mans-quest-to-make-information-free.
174. But see Katie M. Colendich, Comment, Who Owns "The Law"? The Effect on Copyrights When Privately-Authored Works are Adopted or Enacted by Reference into Law, 78 WASH. L. REV. 589, 590 (2003) ("This Comment argues that the Fifth Circuit's Veeck decision created an unsupported exception to copyright law.").
175. Compare Intellectual Property Policy of ASTM International, ASTM INTERNATIONAL, http://www.astm.org/Itpolicy.pdf (last visited Nov. 22, 2012) (explaining that ASTM owns, maintains, and protects its copyright interests to better fulfill its mission)
176. FAQ, OASIS, https://www.oasis-open.org/org/faq (last visited Nov. 22, 2012) (explaining that its members usually work on a royalty- free basis).
177. See, e.g., Letter from Carl Malamud, President & CEO, Public.Resource.Org, to Gary M. Stern, Gen. Counsel, Nat'l Archives & Records Admin. (July 14, 2009) (on file with author);
178. Letter from Raymond A. Mosley, Dir. of the Fed. Register, to Carl Malamud, President & CEO, Public.Resource.Org, Inc. (Aug. 3, 2009) (on file with author) (denying a FOIA request for copies of all technical standards incorporated by reference into the CFR).
179. See Standards for Business Practices of Interstate Natural Gas Pipelines, 68 Fed. Reg. 13,813, 13,1816-18 (Mar. 21, 2003)
180. to be codified at 18 C.F.R. § 284;
181. Standards for Business Practices of Interstate Natural Gas Pipelines, 64 Fed. Reg. 17,276, 17,277 (Apr. 9, 1999)
182. to be codified at 18 C.F.R. § 284;
183. Standards for Business Practices of Interstate Natural Gas Pipelines, 61 Fed. Reg. 55,208, 55,212-13 (Oct. 25, 1996)
184. to be codified at 18 C.F.R. § 284;
185. Standards for Business Practices and Communication Protocols for Public Utilities, Final Rule, 74 Fed. Reg. 63,288, 63,302-04 (Dec. 3, 2009)
186. to be codified at 18 C.F.R. § 38;
187. Standards for Business Practices and Communication Protocols for Public Utilities, 70 Fed. Reg. 28,222, 28,223-24 (proposed May 17, 2005)
188. to be codified at 18 C.F.R. §§ 35, 37, 38.
189. Standards for Business Practices and Communication Protocols for Public Utilities, 74 Fed. Reg. 63,288, 63,302 (Dec. 3, 2009)
190. to be codified at 18 C.F.R. § 38.
191. Standards for Business Practices of Interstate Natural Gas Pipelines, 68 Fed. Reg. 13,813, 13,817 (Mar. 21, 2003)
192. to be codified at 18 C.F.R. § 284.
193. Dominion Resources Inc., 102 Annual Report (Form 10-K) (Mar. 23, 2003) (listing earnings in 2002 as $1,365,000,000).
194. For example, one recent piece of legislation would require PHMSA to "maintain a copy or, at a minimum, a detailed summary of any industrydeveloped or professional organization pipeline safety standards that have been incorporated by reference into regulations, to the extent consistent with fair use." Pipeline Transportation Safety Improvement Act of 2011, S. 275, 112th Cong. § 8 (as passed by Senate, Oct. 17, 2011). This requirement would be "met if the information required to be made public is made available on the [PHMSA]'s public Web site."
195. Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, Pub. L. No. 112-90 § 24, 125 Stat. 1904, 1919 (2012).
196. See Pipeline Safety: Notice of Public Workshop To Discuss Implementing Incorporation by Reference Requirements of Section 24 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, 77 Fed. Reg. 37,472 (June 21, 2012).
197. See Energy Savings and Industrial Competitiveness Act of 2011, S. 1000, 112th Cong. § 101(a) (2011).
198. ASTM INT'L, 2010 ANNUAL REPORT: INNOVATION AND STANDARDIZATION 2, 23 (2010), available at http://www.nxtbook.com/nxtbooks/astm/annualreport2010/ index.php#/0.
199. Press Release, American Petroleum Institute, API provides expanded online access to its safety standards (Oct. 28, 2010), available at http://www.api.org/ Newsroom/api-expanded-stds.cfm.
200. Press Release, NAESB, Procedures for Non-Members to Evaluate Work Products Before Purchasing (May 6, 2009), available at http://www.naesb.org/ misc/NAESB-Nonmember-Evaluation-LockLizard.pdf.
201. News Release, National Fire Protection Association, NFPA Launches New Web Pages to Streamline Access to Technical Document Information (Nov. 16, 2009), available at http://www.nfpa.org/newsReleaseDetails.asp?categoryid= 488&itemId=45446&rss=NFPAnewsreleases.
202. See, e.g., Barbara Jones, Laurie Locascio, Kenneth Cole, & Scott Coates, Meeting the Unknown: Standards for Detecting Biological Weapons Agents, DEF. STANDARDIZATION PROGRAM J., July-Dec. 2007, at 18, 20-21, available at http://www.dsp.dla.mil/app-uil/content/newsletters/journal/DSPJ-07-07.pdf (last visited Nov. 22, 2011) ("DHS . . . has obtained an unlimited license from ASTM to allow first responders and others to download the standard free of charge.").
203. ASTM E2458-10, Standard Practices for Bulk Sample Collection and Swab Sample Collection of Visible Powders Suspected of Being Biothreat Agents from Nonporous Surfaces, ASTM, can be downloaded for free from http://www.astm.org/ DHS/E2458.pdf.
204. ASTM E2601-08, Standard Practice for Radiological Emergency Response is also available for free at the same web address.
205. To download a copy, a user is required to register with ASTM. Registration is free, but the user must provide a physical mailing address, e-mail address, and phone number before the download becomes available. I verified that the process works and takes just a few minutes. NIST is also piloting a program to measure and improve the first responder community's need for certain documentary standards. See Press Release, NIST, It's Your Standard Pilot Project: NIST to Offer Documentary Standards to First Responders (Aug. 2, 2011), available at http://www.nist.gov/director/first-responders-documentary- standards.cfm.
206. Section 508 of the Rehabilitation Act of 1973, as amended, requires federal agencies to make electronic and information technology accessible to those with disabilities. See 29 U.S.C. § 794 (2006).
207. Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 122 Stat. 3016 (2008).
208. The CPSC provides a very useful guide to the CPSIA, including a variety of supplemental information and agency documents in a central location on its website. See Consumer Product Safety Improvement Act (CPSIA) of 2008, CONSUMER PROD. SAFETY COMM'N, http://www.cpsc.gov/about/cpsia/cpsia.html.
209. Notice of Consultation Pursuant to Section 106 of the CPSIA, Request for Comments and Information, 74 Fed. Reg. 35,848, 35,850 (July 21, 2009).
210. ASTM F963-11 STANDARD CONSUMER SAFETY SPECIFICATION FOR TOY SAFETY, ASTM INT'L, available at http://www.astm.org/Standards/F963.htm (last visited Nov. 22, 2012). For $85.20, one can purchase a redline version of the standard showing changes from the previous version. Id.
211. ISO 8124-1:2012, SAFETY OF TOYS-PART 1: SAFETY ASPECTS RELATED TO MECHANICAL AND PHYSICAL PROPERTIES, INT'L. ORG. FOR STANDARDIZATION, http://www.iso.org/iso/home/store/catalogue-ics/catalogue-detail-ics.htm?csnum ber=62327 (last visited Nov. 22, 2012).
212. BS EN 71-1:2011, SAFETY OF TOYS: MECHANICAL AND PHYSICAL PROPERTIES, BRITISH STANDARDS INST., http://shop.bsigroup.com/en/ProductDetail/?pid= 000000000030217312 (last visited Nov. 22, 2012).
213. See, e.g., Membership/Member Types & Benefits, ASTM INT'L, http://www.astm.org/MEMBERSHIP/MemTypes.htm (last visited Nov. 22, 2012).
214. See, e.g., Combustible Dust, 74 Fed. Reg. 54,333, 54,339 (Oct. 21, 2009)
215. to be codified at 29 C.F.R. pt. 1910 ("In the Agency's experience, consensus standards incorporated by reference into OSHA rules quickly become out of date, making it difficult for employers to comply when the out-of-date consensus standards become difficult to obtain.").
216. See, e.g., 1 C.F.R. § 51.1(f) (2012) ("Incorporation by reference of a publication is limited to the edition of the publication that is approved.");
217. See NAT'L ARCHIVES & RECORDS ADMIN., FEDERAL REGISTER DOCUMENT DRAFTING HANDBOOK, CH. 6 (Jan. 2011) [hereinafter DDH], available at http://www.archives.gov/federal-register/write/handbook/chapter-6.pdf.
218. 1 C.F.R. § 51.1(f) (2012).
219. OSHA, Standards Improvement Project-Phase III, 76 Fed. Reg. 33,590, 33,593 (2011) [hereinafter SIP]
220. to be codified at scattered parts of 29 C.F.R. ("The Agency notes that it cannot incorporate by reference the latest editions of consensus standards without undertaking new rulemaking because such action would delegate the government's regulatory authority to consensus standards developing organizations, as well as deprive the public of the notice-and-comment period required by law.").
221. Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 VAND. L. REV. 1457, 1484-85 (2000).
222. see also Franklin v. United States, 216 U.S. 559, 569 (1910).
223. 1 C.F.R. § 51.7(a)(4) (2012).
224. See, e.g., Standards for Business Practices and Communication Protocols for Public Utilities, 74 Fed. Reg. 63,288, 63,288-89 (Dec. 3, 2009)
225. to be codified at 18 C.F.R. § 38 (revising regulations to incorporate by reference new versions of various NAESB standards, and explaining that the effort "include[s] standards adopted by NAESB in response to [FERC] Order Nos. 890, 890-A, and 890-B.").
226. A related practice is for an agency to publish a notice in the Federal Register when a standard developer is accepting comments on revisions to an incorporated standard. See National Institute of Standards and Technology, National Fire Codes: Request for Comments on NFPA Technical Committee Reports, 76 Fed. Reg. 22,381 (Apr. 21, 2011) ("The National Institute of Standards and Technology (NIST) is publishing this notice on behalf of the National Fire Protection Association (NFPA) to announce the availability of and request comments on the technical reports that will be presented at NFPA's 2012 Annual Revision Cycle."). This can raise public awareness of the opportunity to participate in voluntary consensus standard-development activities and promote the agency's interest in understanding revisions as they are considered.
227. See 15 U.S.C. § 272(b)(3) (2006) (providing that a function of NIST is "to coordinate the use by Federal agencies of private sector standards, emphasizing where possible the use of standards developed by private, consensus organizations");
228. see also U.S. DEP'T OF COMMERCE, NAT'L INST. OF STANDARDS OF TECH., NISTIR 5967, THE NATIONAL TECHNOLOGY TRANSFER AND ADVANCEMENT ACT- PLAN FOR IMPLEMENTATION 1 (1997) [hereinafter NIST NTTAA IMPLEMENTATION PLAN], available at http://gsi.nist.gov/global/docs/pubs/NISTIR-5967.pdf ("The [NTTAA] directs NIST to coordinate with other federal government agencies to achieve greater reliance on voluntary standards and conformity assessment bodies with lessened dependence on in-house regulations.").
229. As required by the NTTAA, NIST has issued policy guidance on federal agency conformity assessment activities. See Guidance on Federal Conformity Assessment Activities, 65 Fed. Reg. 48,894 (Aug. 10, 2000)
230. to be codified at 15 C.F.R. § 297.
231. NIST provides a directory of Standards Executives that is available online. See Standards Executives, STANDARDS.GOV, http://standards.gov/standards- gov standardsExecutives.cfm (last visited Nov. 22, 2012).
232. Other tools are available to help agencies understand the U.S. standards system. For example, ANSI offers a free, online educational resource for conformity assessment education. See, e.g., U.S. Standards System-Today and Tomorrow, WWW.STANDARDSLEARN.ORG, http://www.standardslearn.org/coursedetails. aspx? key=2 (last visited Nov. 22, 2012).
233. See Standards Incorporated by Reference (SIBR) Database Home Page, NAT'L INST. OF STANDARDS & TECH., http://standards.gov/sibr/query/index.cfm (last visited Nov. 22, 2012).
234. OFR maintains a similar database of materials approved for incorporation by reference, organized according to where the material is referenced in the CFR, but reports that the listing is not necessarily complete. Electronic Code of Federal Regulations (e-CFR), Incorporation by Reference, U.S. GOV'T PRINTING OFFICE, http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=ibr.tpl (last visited Nov. 22, 2012).
235. See Effectiveness of Federal Agency Participation in Standardization in Select Technology Sectors for National Science and Technology Council's Sub-Committee on Standardization, Request for Information, 75 Fed. Reg. 76,397 (Dec. 8, 2010).
236. SUBCOMMITTEE ON STANDARDS, NAT'L SCI. & TECH. COUNCIL, EXEC. OFFICE OF THE PRESIDENT, FEDERAL ENGAGEMENT IN STANDARDS ACTIVITIES TO ADDRESS NATIONAL PRIORITIES: BACKGROUND AND PROPOSED RECOMMENDATIONS (Oct. 10, 2011), available at http://www.whitehouse.gov/sites/default/files/microsites/ostp/federal- engagement-in-standards-activities-october12-final.pdf.
237. See 5 U.S.C. § 552(a) (2006);
238. see also, e.g., Desmond v. Mukasey, 530 F.3d 944, 957 (D.C. Cir. 2008) (noting that "guidance 'does not carry the force of law and is not entitled to any special deference,'" though it may be "relevant" to a court's interpretation of regulatory requirements
239. quoting Pack v. Kmart Corp., 166 F.3d 1300, 1305 n.5 (10th Cir. 1999).
240. See, e.g., Chamber of Commerce v. U.S. Dep't of Labor, 174 F.3d 206, 212 (D.C. Cir. 1999);
241. David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276, 309-10 (2010).
242. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 92-2, AGENCY POLICY STATEMENTS ¶ I(A) (1992);
243. see also ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 89-5, ACHIEVING JUDICIAL ACCEPTANCE OF AGENCY STATUTORY INTERPRETATIONS (1989) ("In developing an interpretation of a statute that is intended to be definitive, an agency should use procedures such as rulemaking, formal adjudication, or other procedures authorized by Congress for, and otherwise appropriate to, the development of definitive agency statutory interpretations.").
244. 46 C.F.R. § 159.005-7(c) (2011). The regulation is not specifically aimed at permitting compliance with more recent versions of standards incorporated by reference. Rather, it is more broadly worded to permit equivalency determinations regardless of the explanation for the formal noncompliance with applicable regulations.
245. 29 C.F.R. § 1903.14(a) (2012).
246. ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 95-4, PROCEDURES FOR NONCONTROVERSIAL AND EXPEDITED RULEMAKING ¶ I(A) (1995).
247. See generally Ronald M. Levin, Direct Final Rulemaking, 64 GEO. WASH. L. REV. 1 (1995).
248. 14 C.F.R. § 11.29(b) (2012).
249. 49 C.F.R. § 106.40(a)(2) (2011).
250. Inflatable Personal Flotation Devices, 76 Fed. Reg. 56,294, 56,294 (Sept. 13, 2011)
251. to be codified at 46 C.F.R. pt. 160, effective September 26, 2011, if no adverse comment is received by May 31, 2011.
252. 5 U.S.C. §§ 551-559, 701-706 (2006).
253. As the Conference has previously explained, "direct final rulemaking . . . complies with the basic notice-and-comment requirements in section 553 of the APA." ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 95-4, PROCEDURES FOR NONCONTROVERSIAL AND EXPEDITED RULEMAKING ¶ I(A) (1995). Agencies subject to procedural requirements beyond those contained in Section 553 may not be able to use direct final rulemaking.
254. Pub. L. No. 110-314, 122 Stat. 3016 (2008).
255. 15 U.S.C. § 2056b(a) (1996).
256. See 15 U.S.C. § 2089(a)(1) (1996).
257. See 15 U.S.C. § 8003(a)-(b) (2008).
258. See 1 C.F.R. § 51.5(a)(1) (2011);
259. 1 C.F.R. § 51.5(a)(2) (2011);
260. See 1 C.F.R. § 51.5(a)(3) (2011).
261. See 1 C.F.R. §§ 51.1(a)(2), 51.5(a)(2), 51.9 (2011);
262. See Executive Order 13563 and Incorporation by Reference, OFR BLOG (Feb. 18, 2011), http://www.federalregister.gov/blog/2011/02/executive-order-13563- and-incorporation-by-reference;
263. What is Incorporation by Reference?, OFR BLOG (Feb. 17, 2011), http://www.federalregister.gov/blog/2011/02/what-isincorporation- by-reference.
264. See 1 C.F.R. § 51.1(c)(2) (2011).
265. See, e.g., In the Matter of FM Transmitter Site Map Submissions Required by FCC Forms 301 & 340, 1 FCC Rcd. 381 (1986) (allowing rejected license applicants to refile where procedural requirements incorporated by reference were not properly explained in the text of the regulation, but limiting such relief to those who had preserved appeal rights).
266. See Sec'y of Labor v. Brown & Root, Inc., 9 BNA OSHC 1027 (No. 76-2938, 1980).
267. An agency should revise a regulation if it concludes that it has incorporated nonregulatory material in error. See, e.g., Revision of Incorporation by Reference Provisions, Final Rule, 70 Fed. Reg. 23,002
268. to be codified at 14 CFR §§ 71, 97 (removing incorporation by reference of certain nonregulatory documents).
269. See 1 C.F.R § 51.7(c) (2011);
270. 1 C.F.R. § 51.9 (2012).
271. See 49 C.F.R. § 571.5 (2012).
272. Combustible Dust, 74 Fed. Reg. 54,333, 54,339 (Oct. 21, 2009)
273. to be codified at 29 C.F.R. § 1910.
274. Codes and Standards: IEEE National Consensus Standard, Final Rule, 64 Fed. Reg. 17,944, 17,945 (Apr. 13, 1999)
275. to be codified at 10 C.F.R. § 50.
276. 49 C.F.R. § 192.11(c) (2011).
277. See 1 C.F.R. §§ 51.3(b), 51.5(a)(1) (2011).
278. See, e.g., 1 C.F.R. § 51.5(a)(1) (2011) (requiring agencies to "[m]ake a written request for approval at least 20 working days before the agency intends to submit the final rule document for publication").
279. See, e.g., 1 C.F.R. § 16.1(a)(1) (2011) (requiring agencies to designate a liaison officer);
280. See EPA, EPA'S ACTION DEVELOPMENT PROCESS: GUIDANCE ON EXECUTIVE ORDER 13132: FEDERALISM, 8, 39, 53 (2008), available at http://www.govexec.com/pdfs/ 111908rb1.pdf;
281. see also CATHERINE M. SHARKEY, FEDERAL AGENCY PREEMPTION OF STATE LAW (2010), available at http://www.acus.gov/wp-content/uploads/downloads/2011/02/ Sharkey-Final-ACUS-Report-12-20.pdf (last visited Nov. 22, 2011).
282. See, e.g., 1 C.F.R. § 15.1 (2011) (requiring the Director of the Federal Register to assist agencies in publication);