Incorporating Private Standards into Public Regulations
Every year, federal administrative agencies in the United States create thousands of new regulations, producing new rules governing public health, homeland security, consumer protection, and civil rights, among other vital issues. Central to the process of creating these administrative rules is a requirement for public notice and an opportunity for public comment. However, debate has recently emerged over agencies’ practice of “incorporation by reference” – that is, a reliance on privately-created standards in crafting public rules – which some have argued conflicts with values of transparency and public participation.
In two previous RegBlog series, commentators debated the value and shortcomings of incorporation by reference. Our initial series, Regulating by Reference, responded to the reality that “some legally binding rules also originate within private organizations – not the government.” In The Continuing Debate Over Regulatory Incorporation, commentators discussed the OFR’s initial response to the petition that prompted the office to reform its incorporation by reference policies and which resulted in the OFR’s new rule. RegBlog is now excited to publish this week three new essays commenting on the OFR’s recently issued rule.