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Experts Discuss Incorporation by Reference at the ANSI Legal Issues Forum

New York, Nov 05, 2012

On October 10, 2012, nearly 100 legal experts, government officials, and members of the standards and conformity assessment community came together for the 2012 Legal Issues Forum: Incorporation by Reference, Reasonable Availability, and Copyright to examine issues related to the incorporation of standards into U.S. laws and regulations. The forum was held by the American National Standards Institute (ANSI) as part of the 2012 World Standards Week (WSW) series of events.

“The incorporation by reference of privately developed standards into law has attracted increasing attention in recent years,” said Patricia Griffin, ANSI vice president and general counsel. “Participants in the Legal Issues Forum addressed the various issues at play and highlighted the challenges and opportunities of incorporation by reference, while also examining a number of possible options that hold the potential to address related issues without undermining a system that has worked so well for so long.”

In his keynote address to the forum, John Cooney, a partner at Venable LLP, argued that a growing expectation among the public that government information should be available for free on the Internet had complicated the traditional use of incorporation by reference. Mr. Cooney described the issue as a “wicked question,” noting both the belief that individuals should not be required to pay for access to portions of the laws they live under and the important role that the sale of standards plays in funding the work of many standards developing organizations (SDOs).

Emily Bremer, the attorney advisor to the Administrative Conference of the United States (ACUS), moderated an interactive panel discussion on the issue featuring eight expert speakers:

  • Michael Goldenberg, Senior Counsel, Federal Energy Regulatory Commission
  • Rae McQuade, President and COO, North American Energy Standards Board
  • Thomas O’Brien, Vice President and General Counsel, ASTM International
  • Esa Sferra-Bonistalli, Senior Attorney, U.S. Coast Guard
  • Clark Silcox, General Counsel, NEMA
  • Peter Strauss, Professor, Columbia Law School
  • Vanessa Allen Sutherland, Chief Counsel, Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation
  • Rachel Weintraub, Director of Product Safety and Senior Counsel, Consumer Federation of America

Panelists discussed a range of recent activities, including the proposed revision of the Office of Management and Budget’s Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities;” a petition filed by Professor Strauss with the Federal Register arguing that current use of incorporation by reference failed to provide reasonable availability; and recent legislation requiring PHMSA to make privately developed standards available for free, among other related topics.

During the discussion, Ms. Sferra-Bonistalli and Ms. Allen Sutherland discussed the U.S. government’s reliance on incorporation by reference and expressed skepticism that the expert work currently done by independent SDOs could be easily replicated by the government. Mr. Silcox noted that many regulations incorporated only a small part of a standard and suggested that agencies ask SDOs in those cases to make the relevant portion publicly available. Mr. O’Brien told the group that even if the government could find the funds to pay for independent standards development, some SDOs may be reluctant to become involved in such a system, due to concerns that it would complicate their relationships with other countries and organizations. Ms. Weintraub raised concerns about the lack of participation in standards development by consumer advocates and other non-technical experts, an issue she linked to the financial costs of taking part.

Ms. McQuade and Mr. Goldenberg noted that the North American Energy Standards Board (NAESB) developed standards at the request of the Federal Energy Regulatory Commission (FERC), which approved its budget, and discussed NAESB’s decision make read-only copies of its standards available online.

Professor Strauss recommended several potential solutions to the “wicked question,” including pricing only the most recent version of a standard, offering read-only access to incorporated standards, and encouraging government agencies to list multiple standards that would satisfy regulatory requirements.

S. Joe Bhatia, ANSI CEO and president, closed the discussion with remarks that highlighted the importance of reaching an effective compromise.

“As coordinator of the U.S. standardization system, ANSI is working with the SDO community to explore the possibility of hosting a website focused on standards that have been incorporated by reference,” said Mr. Bhatia.

For more information about the Legal Issues Forum, please visit the event page; a photo slideshow from the forum is available here.

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