December 13, 2011

John Cooney successfully presents recommendation to the Administrative Conference of the United States to reform agency incorporation process

2 min

At the 55th Plenary Session of the Administrative Conference of the United States, John Cooney successfully obtained approval of a recommendation to all federal rulemaking agencies concerning the practices governing Incorporation by Reference into federal regulations of consensus standards adopted by private-sector standard setting organizations.

Until ACUS shined a spotlight on the issue, regulatory experts had little understanding of the pervasive nature of the practice by which federal agencies incorporate standards that are drafted, copyrighted, and sold by the standard setting bodies. The incorporation process has existed for more than three decades as an anomaly in federal administrative law. In particular, the law to be adopted (the standard) is not made generally available to the public in the Notice of Proposed Rulemaking that announces the intent to incorporate, and the regulated entities have to pay the standard-setting organizations to purchase a copy of the law by which they will be bound after its incorporation.

Whatever its original justifications, the current practices governing incorporation have become anachronistic with the advent of the Internet and the accompanying public expectation that information - especially the law by which regulated entities are bound -- will be available for free on agency websites. The Administrative Conference identified the problems with the current system and adopted a recommendation that encourages the rulemaking agencies to work with the standard setting bodies to develop technological procedures to improve the transparency of the Incorporation process, such as posting a free read-only copy of the standard proposed to be adopted at the NPRM stage or negotiating a low-cost general license by which the copyrighted standard can be made available for free to all regulated entities. At the Plenary Session, the Recommendation was adopted as proposed by a vote of the Presidential appointees and Public Members of the Administrative Conference.