About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 Emily S. Bremer, Technical Standards Meet Administrative Law: A Primer on an Ongoing Debate 1 (2013)

handle is hein.usfed/tesmadlw0001 and id is 1 raw text is: @5 Volume 65, No. 2 March/April 2013 Technical Standards Meet Administrative Law: A Primer on an Ongoing Debate by Emily S. Bremer Introduction Technical standards not only drive in- dustry and commerce, but also are a crucial component of the federal government's efforts to promote public health and safety through regulation. Federal regulations often require conformity to specified tech- nical standards. While such standards may be created by federal government entities, they more frequently are created by pri- vate standards development organizations. Indeed, federal law and executive policy generally require administrative agencies to use available voluntary consensus stan- dards in regulations, instead of creating so-called government-unique standards to serve regulatory purposes. Incorpora- tion by reference is a regulatory drafting tool that enables agencies to implement this federal standards policy by integrating voluntary consensus standards into binding regulations without infringing the standards development organizations' copyrights. Largely by virtue of this practice, today there are more than 9,500 incorporations by reference of standards in the United States Code of Federal Regulations (CFR). In the age of open, elec- tronic government, however, in- corporation by reference raises difficult administrative law and process issues. In2011, the Ad- ministrative Conference of the United States undertook a proj - ect designed to address these issues. I served as the Confer- ence's in-house researcher for this project. The most difficult issue-and the one this article focuses on-is that of ensuring the public has sufficient access to materials that are or may be incorporated by reference. Today, agencies are required or strongly en- couraged to make many documents, includ- ing proposed and final rules, freely available via the Internet. Incorporated materials, including voluntary consensus standards, are frequently copyrighted, preventing agencies from simply posting them online for public viewing. In such situations, regulated and other interested parties may have to pay a private party to be able to view the full text of a proposed or final rule. To administrative lawyers, this is a serious problem. But any solution must respect copyright, preserve the valuable public-private partnership in stan- dards that is facilitated by federal standards policy, and ensure that funding remains sufficient to support the development of essential technical standards. In December 2011, the Administra- tive Conference adopted Recommendation 2011-5, Incorporation by Reference, urging a collaborative solution to incorporation by reference's public access problem. The rec- ommendation sparked a public policy debate that is likely to rage on for the foreseeable future. This article will introduce you to the Administrative Conference, explain the administrative law and process issues raised by incorporation by reference, and explore the various facets of this ongoing public policy debate. The Administrative Conference The Administrative Conference of the United States is an independent federal agency charged with studying administra- tive law and process and making recom- mendations for improvement to Congress, the President, federal agencies, and the Judicial Conference. Non-partisan and politically balanced, the Conference is a public-private partnership composed of 101 members drawn from both govern- ment and the private sector. Only one Conference member serves on the staff, Chairman Paul R. Verkuil, who was appointed by President Obama and confirmed by the Senate for a five-year term. The remaining 100 members serve without pay. Forty of them are so-called Public Members: administrative law ex- perts, frequently with past govern- ment service experience, working in academia, private practice, or public interest organizations. The rest are Government Members: high-level government officials drawn from a vast array of execu- tive departments and administra- tive agencies. The Conference's expertise is further expanded by Standards Engineering The Journal of SES - The Society for Standards Professionals

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most