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

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations-but only by "reference." These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization, or else she must travel to Washington, D.C., to the Office of the Federal Register's reading room.This law, under largely private control, is not formally "secret," but it is expensive and difficult to find. It raises the question of what underlies the intuition that law, in a democracy, needs to be readily, publicly available. Previous analyses of the need for publicity have focused almost wholly on the need of regulated entities for notice of their obligations. This Article assesses several other considerations, including notice to regulatory beneficiaries, such as Medicare recipients, consumers of dangerous products, and neighbors of natural gas pipelines. Ready public access to the law is also critical to ensuring that federal agencies are meaningfully accountable for their decisions, through both internal and external mechanisms, including voting, political oversight, and agency procedures. The need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm-a message inconsistent with core democratic values-is likely to flow from governmental adoption of regulatory law that is, in contrast to American law in general, harder to find and costly to access. Full assessment of the importance of public access to law both strengthens the case for reform of access barriers to incorporated-by-reference rules and limits the range of acceptable reform measures.IntroductionThe 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."4And 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.8Despite 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. …