Statutes and regulations governing everything from buildings to food safety incorporate by reference (IBR) privately developed technical standards. The module covers the range of issues implicated by the practice of IBR: government transparency, statutory interpretation, copyright law, and administrative efficiency. The materials in this module were created by Emily S. Bremer, Associate Professor of Law, Notre Dame Law School.
Applicable Courses: Administrative Law, Regulatory Law & Policy, Law & Technology, Legal Theory
Materials:
- Teaching guide: Emily S. Bremer, When Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference
- Published version of teaching guide: Emily S. Bremer, Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference, 72 Admin. L. Rev. 315 (2019)
- PowerPoint presentation: Emily S. Bremer, When Technical Standards Meet Administrative Law
- Overview Essay: Emily S. Bremer, Introducing Incorporation by Reference, Regul. Rev. (Aug. 24, 2022)
- Emily S. Bremer (Associate Professor of Law, Notre Dame Law School)
- What is incorporation by reference and why is it important?
- What is the history of the private standard system in the United States?
- Why do government agencies incorporate private standards?
- What issues arise because of limited public access to incorporated private standards?
- What did the Administrative Conference recommend to promote public access to copyrighted standards?
- What issues did the Office of the Federal Register confront over incorporation by reference?
- Gordon Gillerman (Director, Standards Coordination Office, National Institute of Standards and Technology, U.S. Department of Commerce)
- Nina Mendelson (Joseph L. Sax Collegiate Professor of Law, University of Michigan Law School)
- What is incorporation by reference, and why does it matter?
- What are some of the legal problems with incorporation by reference?
- Why is it important to ensure meaningful public access to standards?
- What is involved in finding standards that have been incorporated into regulations?
- Can online reading rooms provide sufficient public access to incorporated standards?
- Travis Murdock (Manager, Technical Committee Operations, ASTM International)
- Mary Saunders (Vice President, Government Affairs and Public Policy, American National Standards Institute [ANSI])
- Peter L. Strauss (Betts Professor Emeritus of Law, Columbia Law School)
- What is incorporation by reference, and why is that issue important to citizens, law students, and lawyers?
- What are the advantages and disadvantages of incorporation by reference?
- Why did you petition the Office of the Federal Register in 2012 over its rules about incorporation by reference?
- What did the Office of Federal Register do in response to your petition?
- Should the public be concerned that private standards will not be sufficient to meet society’s needs?
- Sara Yerkes (Senior Vice President, Government Relations, International Code Council)
- Administrative Conference of the United States, Incorporation by Reference Project and Recommendation (ACUS)
- Administrative Conference of the United States, Comment Submitted to the Office of the Federal Register (2012)
- American Bar Association Section on Administrative Law & Regulatory Practice, Comment Submitted to the Office of the Federal Register (2012)
- ANSI Incorporated by Reference Portal
- ANSI Comment Submitted to the Office of the Federal Register (2012)
- ANSI, Why Voluntary Consensus Standards Incorporated By Reference into Federal Government Regulations Should Retain Copyright Protection
- ASTM International, Comment Submitted to the Office of the Federal Register (2012)
- Emily S. Bremer, Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Pol’y 131 (2013)
- Cary Coglianese, Comment Submitted to the Office of the Federal Register (2012)
- David Hilzenrath, “Interior Dept. Gives Rules Drafted by Oil Industry Force of Law,” Project on Government Oversight (2018)
- Nina A. Mendelson, Private Control Over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737 (2014)
- Nina A. Mendelson, Comment Submitted to the Office of the Federal Register (2014)
- Nina A. Mendelson & Allison M. Zieve, Administrative Law Professor Amicus Curiae Brief in Milice v. CPSC (2020)
- Office of the Federal Register, Incorporation by Reference Final Rule (2014)
- Office of Federal Register, IBR Handbook
- Peter L. Strauss et al., Petition for Rulemaking Submitted to the Office of the Federal Register (2012)
- Peter L. Strauss, Comment Submitted to the Office of the Federal Register on “Preserving SDO Copyright Interests” (2012)
- The Regulatory Review: Regulating by Reference (2013) (series of essays)
- The Regulatory Review: The Continuing Debate Over Incorporation by Reference (2013) (series of essays)
- The Regulatory Review: Incorporating Private Standards into Public Regulations (2015) (series of essays)