Notice & Comment

When IBR Meets APA, by Alan B. Morrison

Engineering Rules: Global Standard Setting since 1880 [1] is a fountain of information about the origins, use, and changes in the world of standard setting.  To even the casual reader, it makes a convincing case that those who started convening groups of knowledgeable volunteers have performed a very useful service by creating standards for many common fields in which standardization is essential.  It nicely illustrates this proposition on page 1 by reminding the reader that the type size of the book itself and the container in which it was shipped, or, if the book is being read on a screen, the set of electrical impulses that create the characters on the screen and the software that generates the text, are all beneficiaries of standardization.

As the use of standards became widespread, they were collected and then copyrighted and sold to offset the cost of production.  As long as standards remained voluntary, copyright did not present any problems, largely because those who needed to know and apply a standard were in a business in which the decision to purchase a book that had the necessary information was just like any other decision to acquire a manual or other necessary tool.

Today, some standards are no longer voluntary, but instead are the law. One of the first examples are the standards for boiler safety which became the law in the nineteenth century.   Some voluntary standards become law by legislative enactment into a statute, while others became law by a process known as Incorporation by Reference (“IBR”), described below. Once a standard becomes the law, it requires those who make or use a product subject to the standard to abide by the standard, but it also places a limit on what must be done.  So, for example, if the safety requirements for boilers are too lax, accidents may happen and not only will individuals be injured, but they may lose their right to recover because the manufacturer complied with the law and thus would be immune from suits for damages.  In other words, the boiler standard is both a floor – which is good because everyone had to follow it – and a ceiling, which may not be good because no one is likely to build a safer boiler than the law requires.

At that point, there is a problem.  Under our legal system, our laws must be public if they are to be obeyed, and if people are to be held responsible for not complying with them.  They also need to be public so that concerned citizens can determine whether, for example, the boiler standards are stringent enough, and if not, the government that adopted the inadequate standard can be asked to change the law, a right guaranteed by the First Amendment right to petition the government for redress of grievances.  But if those standards, which are now the law, are subject to copyright, that means that citizens must pay to know the law and cannot reproduce the law for others.  The result is inconsistent with our basic understanding of the law and how that affects us all, as well as the First Amendment.  Some of these copyrighted standards are relatively inexpensive, while others are very pricey.  While some standards are available for viewing (on line), they cannot be copied and may be subject to stringent use restrictions.  And even when available, they are not as accessible as statutes regularly adopted by Congress or state and local legislatures.

The IBR process can work one of two ways.  A legislature or city council can simply adopt a standard as a law, announcing in legislation that the entire text of the standard is now law.  The entities that hold the copyright to the standard insist that their right to prevent others from copying the standard do not evaporate when the standard becomes the law even though everyone will have to pay for the privilege to know what the law is. The proponents of the “You can’t make us pay to know the law” position principally rely on Veeck v. Southern Building Code Congress International, 293 F.3d 791 (5th Cir.) (en banc), cert denied, 537 U.S. 1043 (2002), as well as Supreme Court cases that rely in part on this rationale in ruling that official court opinions and statutes cannot be copyrighted.  The issue is being directly litigated in a case now pending on remand from the decision in American Society of Testing & Materials v. Public.Resource.Org Inc., 896 F.3d 437 (D.C. Cir. 2018).  The issue is also presented in a different posture in a case that the Supreme Court will hear this term, Georgia v. Public.Resource.Org Inc., No. 18-1150.[2]

If a legislature adopts a standard by its usual processes, there is no copyright problem. But today, most legislatures do not have the time or expertise to decide whether to adopt any standards, let alone the thousands that currently exist and are later updated. And so, as they do in countless other situations, legislatures delegate the authority to adopt these standards to an administrative agency that is experienced in the subject area of the standard.  At the federal level, Congress has passed a law expressly allowing agencies to adopt a standard on wholesale basis, by incorporating the standard by reference in a rule to the existing standard, hence IBR.[3]  That law removed any doubt that an agency could use wholesale adoption, without having to reprint the very complicated and lengthy standard in the Code of Federal Regulations, a rationale no longer relevant in the digital age.

That law did not, however, amend the Administrative Procedure Act (“APA”), in particular 5 U.S.C. §553, which requires that, with exceptions that do not apply in this situation, all rules – and this would surely include substantive standards enacted under IBR – must go through a process of notice and comment,  Under that process, interested persons, such as Public Resource, have an opportunity to comment on whether the proposed rule should be adopted by the agency which has proposed it.[4]  When the APA was passed in 1946, most agencies used the rulemaking authority in section 553 only sparingly, but today it is the main means by which most agencies, including those that use IBR, make their law.  In part because of the recognition that substantive rules are important and affect many different constituencies in very different ways, the courts have read into section 553 a requirement that the opportunity to comment must be meaningful.[5] Although section 553 permits agencies to include a summary of a proposed rule in its notice to the public, almost no agencies utilize that option, probably because it is both easier to include the entire proposal, or a link to it, or because a summary that would satisfy the meaningful opportunity requirement would be almost as long as the rule itself and might be challenged for failure to include all of nuances in which the public might be interested.

In rules that seek to employ IBR, the problem is that the standard is often not available in a manner that gives interested persons a meaningful opportunity to comment.  In some cases, there is a link to the entity that created the standard, which may be available for a substantial cost, or perhaps in a read only format, which makes it very difficult if a citizen objects to certain language and has to copy it by hand from the original.  In other cases, the standard is available, again on a read only basis, at the agency headquarters in Washington, and perhaps at a few other locations.  But whatever the availability, it is much less convenient than in most cases, and to objective observers, the agency has not provided a meaningful opportunity to comment on a standard that the agency proposes become the law by use of IBR.   In addition, if the notice and comment hurdle is surmounted, section 552(a)(1) requires that the agency “shall separately state and currently publish in the Federal Register for the guidance of the public—(D) substantive rules of general applicability adopted as authorized by law.”  The obvious purpose of that provision is to enable citizens to know what the law is, a purpose not served by an inaccessible IBR standard.

There is one other relevant provision of the APA, contained in the final paragraph of section 552(a)(1):

Except to the extent that a person has actual and timely notice of the terms thereof, 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. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.”

The first sentence underscores the right to know the substantive rules that an agency has issued before being adversely affected by them and explains a clear way to satisfy that principle:  publish the rule in the Federal Register for everyone to read and copy.  The second sentence is IBR specific, but, fairly read, requires that the final rule be “reasonably available,” which is not the case for many IBR rules since the final version is no more accessible than the proposal, even after it has become “the law.”

There is another important inference that should be drawn from this provision.  It adds an additional means by which IBR standards that become law can satisfy the requirement for publication in the Federal Register: approval by the Director of the Federal Register for not publishing it there.  Whatever the proper scope of the Director’s authority with respect to a final IBR rule, it has no bearing on whether the requirement that the public have a meaningful opportunity to comment is satisfied when the draft rule is not reasonably available to any interested persons.  Indeed, the fact the IBR law does not apply to section 553(c) is made plain by the fact that the special provision in the above paragraph specifies that it is “[f[]or the purpose of this [the Federal Register publication] paragraph” in section 552(a)(1), and therefore not to the meaningful opportunity to submit comments found in an entirely different section of the APA.

If the courts ultimately agree with Public Resource that IBR standards, once adopted by a legislature or agency, are no longer protected by copyright, the publication requirement of section 552(a)(1) will not be needed to assure that IBR standards adopted by federal agencies are reasonably available to the public.  But even if the Court were, contrary to precedent, reach the opposite result, IBRs would still not be able to become federal law unless the agencies assured that interested persons have a meaningful opportunity to provide comments on them, which is not the case under current practice.

One final thought:  I was puzzled by the title “Engineering Rules.”  Did it mean that, for matters relating to engineering, there must be rules for everyone to use?  Or, did it mean that, when there are disagreements about how to decide questions of public policy, the engineers “ruled,” that is they got to decide?  Perhaps it does not mean either, but a statement on pages 12-13 led me to think that the meaning of the title is more likely the latter than the former.  According to the authors, there is a “general belief held by standardizers that, in the long run, any standard is better than no standard at all.”  That may be true for voluntary standards, but I doubt that many consumers, workers, and environmentalists whose interests may be adversely affected by standards that become law would agree with that conclusion, and it is certainly not consistent with the process for lawmaking through rules that is controlled by the APA. [6]

Alan Morrison is the Lerner Family Associate Dean for Public Interest Law, George Washington University Law School.  Dean Morrison has provided legal advice to Public.Resource.Org, (“Public Resource”) which has been challenging laws and practices that preclude the public from gaining meaningful access to standards adopted by private organizations that have become law, over claims that those standards still retain their copyrights even after they have become law.

This post is part of a symposium reviewing JoAnne Yates and Craig N. Murphy‘s Engineering Rules: Global Standard Setting since 1880 (John Hopkins University Press). Previous posts in the symposium can be viewed here.

[1] JoAnne Yates & Craig N. Murphy (Johns Hopkins University Press 2019).

[2] The lower court decision is found at 906 F.3d 1229 (11th Cir. 2018).

[3] 5 U.S.C. § 552(a)(1); 1 C.F.R. §§ 51.1-51.11.

[4] Section 553(c) provides as follows: “After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.”

[5] See e.g., American Radio Relay League, Inc. v. F.C.C., 524 F.3d 227, 237 (D.C. Cir. 2007) (“It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment.”).

[6] The APA does not apply to standards that become law when state or local agencies use IBR.  Many states have their own APAs, but whether they (and any local APAs) contain similar protections for the public is beyond the scope of this essay.