Rulemaking Process Raises Copyright Concerns

December 15, 2011

When federal agencies write regulations, they are directed under a 1995 law to use voluntary consensus standards developed by industry whenever possible rather than to develop new ones to accomplish the same goal.

Those standards are then typically “incorporated by reference” into federal rulemaking official documents. That means the standards are cited by name, originating body, and date of release, rather than being published in full.

The industry groups that produce such standards often have a copyright on the documents and charge a fee for access. But now the Administrative Conference of the United States, a federal advisory committee, is reexamining the “incorporation by reference” practices and has recommended some changes. Meanwhile, several transparency groups claim the changes do not go far enough in ensuring enough public access to regulatory information.

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