Incorporation by Reference in an Open-Government Age
Bremer, Emily S., Harvard Journal of Law & Public Policy
II. THE PUBLIC ACCESS PROBLEM
The greatest challenge presented by incorporation by reference is that it impedes access to the law. In all cases, the practice requires interested parties to find material outside of the CFR in order to view an entire regulation. In some cases, if the incorporated material is copyrighted and sold by a private party, incorporation by reference may even require interested parties to pay to see the law.
The traditional solution to this public access problem has been to require OFR and promulgating agencies to keep incorporated documents on file for public inspection in agency offices. (98) During the rulemaking stage, this is no solution at all. Materials are not "incorporated by reference," thereby triggering the public inspection requirement, until the final rule is promulgated. (99) Even following promulgation, public inspection is inadequate because it requires interested parties to physically go to an agency office--often located only in Washington, D.C.--to view the law. In the past, this limited availability was considered sufficient, but the burden is intolerable in an era of open government and increasingly ubiquitous use of the Internet.
An alternative approach would be to avoid incorporation by reference altogether by printing out the text of the extrinsic material verbatim in the text of the regulation. This approach would significantly lengthen the CFR, thereby defeating the original purpose of permitting incorporation by reference. This concern may have less force as the CFR transitions from its traditional print format to an electronic format. (100) However, there are other difficulties with this approach. In some cases, the material may include charts or diagrams that simply do not fit in the CFR. More generally, including lengthy and highly technical materials in the text of a regulation may detract from its readability and clarity. (101) The regulatory standard might easily be lost amid the complexity of the supporting technical standards. Finally, if the material is copyrighted, reprinting it in the text of the regulation may simply not be an option.
The ideal solution would be for agencies to post incorporated materials online. This is an easy solution for incorporated materials that are not copyrighted. For example, the Federal Communications Commission (FCC) incorporates FAA advisory circulars, (102) and OSHA incorporates certain safety requirements created by other federal agencies. (103) Such documents are generally ineligible for copyright protection because they are authored by the United States government. (104) Other materials, such as the state environmental regulations that EPA incorporates by reference (105) may similarly not be subject to copyright or other legal protections. If an agency incorporates such material by reference, the agency should make a copy of it available electronically in a location where interested parties will be able to find it easily.
If the incorporated material is copyrighted--as is often the case with voluntary consensus standards--posting it online is more difficult. Although a recent judicial decision, (106) combined with pressure from some scholars, activists, regulated parties, and government officials, (107) have raised questions regarding the strength of copyrights in incorporated standards, federal law and policy requires agencies to respect copyright. Agendes can be liable for copyright infringement (108) and, when using voluntary consensus standards, are required to "observe and protect the rights of the copyright holder and any other similar obligations." (109) In light of these legal principles, some agencies have incorporated by reference for the express purpose of respecting copyright. (110)
Aggressive approaches--such as changing copyright law, requiring a waiver of rights as a condition of incorporation, or buying out the copyright--are obvious but suboptimal …
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Publication information: Article title: Incorporation by Reference in an Open-Government Age. Contributors: Bremer, Emily S. - Author. Journal title: Harvard Journal of Law & Public Policy. Volume: 36. Issue: 1 Publication date: Winter 2013. Page number: 153+. © 2009 Harvard Society for Law and Public Policy, Inc. COPYRIGHT 2013 Gale Group.
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