Private Control over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards

By Mendelson, Nina A. | Michigan Law Review, March 2014 | Go to article overview

Private Control over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards


Mendelson, Nina A., Michigan Law Review


Introduction

The American democratic commitment to public law is longstanding. As James Madison wrote in 1822, "A popular Government, without popular information . . . is but a Prologue to a Farce or a Tragedy; or, perhaps both."1 And Justice Scalia echoed these sentiments nearly two centuries later: "Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes."2 Scalia contrasted the "nasty practice[ ]" of an early Roman emperor.3 Emperor Caligula reportedly faced public outcry after he enacted laws imposing severe penalties and had them inscribed in "exceedingly small letters on a tablet which he then hung up in a high place, so that . . . many through ignorance . . . should lay themselves liable to the penalties provided."4

And in the 1930s, Harvard professor Erwin Griswold complained about the enormous numbers of federal regulations, freshly issued by New Deal agencies, that were obscurely published in "separate paper pamphlets" or even on a "single sheet of paper."5 Finding these binding legal rules was difficult, leading to "chaos" and an "intolerable" situation.6 Congress re- sponded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations ("CFR").7 Currently, recent federal pub- lic laws, the U.S. Code, the Federal Register, and the CFR are all freely availa- ble online as well as in governmental depositary libraries.8

Despite these repeated public commitments to transparency, we seem to be returning to a situation where thousands of federal regulatory standards are increasingly difficult to locate. The text of these standards appears in neither the Federal Register nor the CFR. They are privately drafted stan- dards that a federal agency has incorporated only by "reference" into the CFR, and they are generally available only on request to a private organiza- tion and payment of a nontrivial price.

The CFR today contains nearly 9,500 "incorporations by reference" of standards, often referred to as "IBR" rules or standards. Some IBR rules incorporate material published by other agencies or state entities,9 but many incorporate privately drafted standards from so-called "standards develop- ment organizations" or "SDOs," organizations ranging from the American Society for Testing and Materials ("ASTM") to the Society for Automotive Engineers and the American Petroleum Institute ("API").10 Agency use of private standards is likely to grow because, since the 1990s, both executive branch and congressional policies have officially encouraged it. Indeed, if an agency develops "government-unique" standards when a "consensus" pri- vate standard exists, the agency must explain why it did so.11

A reader perusing worker-safety requirements in the CFR may note that contractors handling pressure systems must comply with the American Soci- ety for Mechanical Engineers ("ASME")'s "Manual for Determining Re- maining Strength of Corroded Pipelines,"12 among other standards. To access these standards, the CFR refers the reader directly to the ASME at its New Jersey location or at its website.13 The reader's only alternative is to write for an appointment at the Office of the Federal Register ("OFR")'s reading room in downtown Washington, D.C.14 On the internet, the cited standard is available from a third-party seller for $68; despite the CFR's promise, ASME itself apparently no longer provides the standard.15

Private standards like these are used to define the content of federal rules in an extraordinarily wide variety of subject areas, ranging from toy safety to Medicare prescription-drug-dispensing requirements to nuclear power plant operation.16 Some IBR standards might be colloquially charac- terized as "technical," including those establishing standard-measurement protocols17 or coordination-type standards. Coordination standards include, for example, the National Fire Protection Association's "standard coupling" compatibility standard, developed around 1910 to ensure that fire hoses can be properly attached to fire hydrants, no matter the city of the originating fire truck. …

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