It is bedrock in a democracy, of course, that the public must be able to see the text of binding law. We take for granted that we can readily view federal statutes and regulations in government publications that are freely available online and in the Federal Depository Library System. It might surprise some to learn, then, that for numerous binding federal rules ranging from food additive standards to toddler bed safety to offshore drilling requirements, the public lacks meaningful access to the text of the rules. In December, the ABA’s Section of Administrative Law and Regulatory Practice approved a report and resolution for the full ABA House of Delegates regarding the need for meaningful public access to these rules. [The ABA AdLaw resolution is available here, and all of the ABA resolutions under consideration are here.]
This public access problem has arisen as federal agencies, to save resources and build on private expertise, have worked with private organizations to incorporate privately drafted standards into thousands of binding federal regulations. Agencies have been permitted, by the so-called “incorporation by reference” provision of 5 U.S.C. 552(a)(1), to use these standards without publishing the incorporated text in the Federal Register or Code of Federal Regulations. The text of these standards is not formally secret, but under current implementation, free access is reliably available only in the Office of the Federal Register’s Washington, D.C., reading room. To see this regulatory text, members of the public must either travel to Washington or else contact the private drafting organization and, at the organization’s option, pay fees that can range into the hundreds or even thousands of dollars per standard. Some drafting organizations have begun providing limited free online access to incorporated text on their individual websites. This is a distinct improvement. However, the organizations uniformly reserve the right to revoke access at any time and even condition access on the reader agreeing to indemnification and forum selection clauses. The potential charges for seeing the text, obstacles to locating it, and other conditions thwart public access. The problem is particularly significant for small businesses or individuals who must comply with the rules, who hope to learn what the law requires of others, or who wish to hold government accountable.
Similarly, despite the rulemaking provisions of the Administrative Procedure Act, and agencies’ historic practices of making proposed regulatory text available in a Notice of Proposed Rule, agencies do not consistently make available the text of standards at the time agencies propose to incorporate them into federal rules. This lack of access undermines the public’s usual right to participate in an agency’s regulatory decision.
The Administrative Law Section’s Resolution would ask Congress to take three actions to ensure meaningful public access to these federal rules and public participation in the rulemaking process:
(1) Amend the Freedom of Information Act to require that a rulemaking agency utilizing such standards ensure “meaningful free public availability of the incorporated text, such as through online access in a centralized online location or access in all government depository libraries.”
(2) Amend the Administrative Procedure Act’s rulemaking provisions to require “meaningful free public availability of a proposed standard’s text during the public comment period,” when an agency is considering whether to adopt the standard into federal regulations.
(3) Ensure that agencies are able, where appropriate, to compensate private organizations for financial losses that might be attributable to making text incorporated into federal rules publicly available.
As to this last action, the Section is unaware of any cases in which agencies have chosen to utilize a standard over a drafting organization’s objection. The concern is that a drafting organization might decline to make a standard available to an agency for incorporation owing to concerns about greater public access. Ensuring that agencies have access to the ability to provide some payment to organizations would safeguard against this (probably remote) possibility. The paramount point of the resolution is to urge legislation barring an outcome in which a citizen—or any reader—must travel or pay significant fees to view the text of the law.
Nina A. Mendelson is the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School.