Universal, free access to the law is a prerequisite to open participation in government. Without an opportunity to access the law, citizens have no way to comprehend the rules that bind them. However, the relatively unknown practice of incorporation by reference (IBR) allows private organizations to charge for access to binding legal standards. IBR standards permeate nearly every sphere of life. They set the allowable colors of OSHA mandated safety vests, the thread size of screws used on oil pipelines, and can even describe the scope of federal benefits. So why are agencies allowed to give these private standards affecting nearly every sphere of our lives the binding force of law?

Standards development is expensive. Crafting standards requires time, expertise, money and political capital. In response to these costs, as well as the exploding size of the Federal Register, Congress authorized the practice of incorporation by reference for technical standards in 1966. Agencies may incorporate standards developed by private organizations into the law by reference, which means they are not reprinted in the CFR in their entirety.

The most recent executive pronouncement on incorporation by reference, Circular A-119, directs agencies to “observe and protect the rights of the copyright holder.” As these standards are not printed in the CFR, the developing organizations can charge members of the public to access them. Private organizations charge prices ranging from less than twenty to thousands of dollars to access standards. For the average individual or small business, these costs can arguably preclude “reasonable” access.

The only access requirement set forth by the enabling legislation is that the materials be “reasonably accessible to the class of persons affected thereby.” The OFR rules on IBR standards were issued in 1982, the same year the first compact disc was released and an Apple III computer cost (an inflation-adjusted) $8,500. As a result, the only concrete requirement for public access is that copies of standards be available in the OFR reading room in Washington, D.C. In light of the changes in information technology over the last three decades, the meaning of “reasonably accessible” has ostensibly changed such that standards should be made available online.

At a minimum, IBR standards should be accessible without charge to members of the public that are bound by their standards. To do otherwise allows agencies to become the cruelest of tyrants. In the words of Jeremy Bentham: “we have never heard of any tyrant in such sort cruel, as to punish men for disobedience to laws or orders which he had kept them from the knowledge of.” The OFR amended its regulations governing IBR standards last year, requiring that agencies “[d]iscuss, in the preamble of the final [and proposed] rule, the ways that the materials it incorporates by reference are reasonably available to interested parties and how interested parties can obtain the materials.” While this is a move in the right direction, it falls short of ensuring meaningful access to the public.

If you believe that allowing binding laws to hide behind a paywall undermines our democracy, write your local congressperson.

–Anthony Jackson

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