AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 122

LARGE ADDITIONAL ATTACHMENT(S) filed by PUBLIC.RESOURCE.ORG, INC. #121 MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Exhibit 1-10 Public, #2 Exhibit 11-20 Public, #3 Exhibit 21-40 Public, #4 Exhibit 41-60 Public, #5 Exhibit 61-80 Public, #6 Exhibit 81-100 Public, #7 Exhibit 101-120 Public, #8 Exhibit 121-140 Public, #9 Exhibit 141-157 Public)(Bridges, Andrew)

EXHIBIT 101

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EXHIBIT 103

ASHRAE
Writing Standards in Code-Intended
Language

Version 2
January 12, 2015

This document may not be distributed in whole or in part in either paper or electronic form outside of
ASHRAE membership without the express permission of the ASHRAE Manager of Standards.

1 

1. INTRODUCTION
ASHRAE Rules of the Board (ROB) includes these rules:
1.201.004.5 All standards shall be written in definitive mandatory language.
1.201.004.3 Standards that are intended for code use should be concise and written in
appropriate code language with simple and direct prescriptive methods for compliance, with
alternative performance paths.
1.201.003.1 Write all new and revised standards and addenda that cover subjects addressed in
building codes or regulations in such a way that those standards can be readily integrated into
those codes and regulations and applied as an integral part of the resultant code or regulatory
documents.
The Procedures for ASHRAE Standards Actions (PASA) defines code-intended standard and a code
language document as:
code-intended standard: A standard intended to be adopted as a code using code language.
code language document: A document that presents a set of requirements related to the design,
application, or use of HVAC&R and related technologies where all or portions of the document
may be enacted as mandatory enforceable requirements by a political jurisdiction. Portions
intended to be enforced (normative) are written in mandatory, enforceable language. Portions
not intended to be enforced are identified as informative and are to be located in informative
notes, in informative annexes (appendices) or in other advisory documents. See annex,
informative annex, informative notes and normative annex.
These rules and definitions support ASHRAE’s objective to have code-intended ASHRAE Standards
adopted by reference directly into laws, rules, regulations, and other documents that cover the built
environment, or referenced as a component of other standards, model codes and documents that form the
basis for those same laws, rules, and regulations. To achieve this objective:


ASHRAE standards must be written entirely in mandatory language.



ASHRAE standards intended for adoption within codes, rules, regulations, and other documents
that cover the built environment must be written in code-intended language.

A companion guide, ASHRAE Guide to Writing Standards in Mandatory Language, provides steps for all
Project Committees (PCs) to complete as a step toward compliance with the ROB’s mandatory language
requirement.
The nature of writing standards in code-intended language requires a basic understanding of how codes,
rules, regulations and other documents must be written to clearly state specific requirements and desired
outcomes that can be documented and verified for compliance within a legal framework. A code-intended
standard must also align with other model codes and standards that are collectively used to regulate the
built environment, and compliance with any path in the standard must be capable of being uniformly
documented and verified.

2 

2. GUIDANCE FOR WRITING STANDARDS IN CODE-INTENDED LANGUAGE
2.1 Responsibilities
2.1.1 Standard Project Committees
2.1.1.1 Mandatory Language. Each standard project committee (SPC) and standing standard project
committee (SSPC) must review its draft standard or addendum to identify the use of non-mandatory
language, following the steps in ASHRAE Guide to Writing Standards in Mandatory Language Section
2.2.1 before submitting the draft for publication public review approval. If the SPC/SSPC is unable to
make corrective revisions to eliminate non-mandatory language the SPC/SSPC is encouraged to request
assistance from ASHRAE staff to assist with the development of revisions to meet the mandatory
language requirement.
2.1.1.2 Code-Intended Language. Each SPC/SSPC must review and apply the guidance in Section 2.2
of this guide before submitting its draft for publication public review approval. To facilitate the
development of appropriate code-intended language and reduce the need for and time associated with
outside assistance, PCs are encouraged to establish a format and compliance subcommittee, comprised of
one or more volunteers, focused on meeting the code-intended requirement. If the SPC/SSPC is unable to
make corrective revisions to comply with the code-intended language requirement, the SPC/SSPC is
encouraged to request assistance from ASHRAE staff to assist with the development of revisions to meet
the code-intended language requirement.
2.1.2 Standards Project Liaison Subcommittee (SPLS). SPLS, with support from ASHRAE Staff, (a)
will review the normative portions of code-intended draft standards and addenda submitted for public
review to determine if they are written in both mandatory and code-intended language, and (b) will assist
the project committee (PC) Chair (or his/her designee such as a format and compliance subcommittee)
with revisions that will result in the draft standard or addenda meeting the code-intended language
requirements.
2.2 Code-Intended Language Format and Content
2.2.1 General. The criteria in Sections 2.2.2 through 2.2.6 must be followed by PCs writing codeintended standards and addenda. Informative Annex A provides examples of how to (and how not to)
write standards in code-intended language and rationale behind the need for code-intended language.
2.2.2 Conformity Assessment. Reference to third-party testing, certification, listing, labeling or other
entities engaged in documenting or verifying compliance with any part of the standard or addenda must
be referred to as an “approved agency” instead of including the name of the third-party. The following
definition must be included in each standard.
approved agency: an agency engaged in conducting tests, furnishing inspection services, or
commissioning services that has been approved by the entity responsible for validating
compliance with this standard.
2.2.3 Coordination and Integration with Other Relevant Documents. Where the standard is intended
to be used in conjunction with documents published by other standards or model code development
organizations, the ASHRAE standard must be sensitive to “meshing” with those other documents so that
the ASHRAE standard will be adoptable by reference into those documents to address the topic covered
by the ASHRAE standard.
3 

2.2.4 Responsibility within Code-Intended Standards. Where the standard requires something to be
done, the standard needs to identify what is required to be done, who is required to do it, and, if relevant,
who is required to receive the results. More specifically, where the standard requires something to be
done, a specific criterion and a metric must be provided as the basis for documenting and verifying
compliance.
2.2.5 Simple and Repeatable. The standard will be more adoptable by reference where the criteria are
stated simply and, where there are multiple paths to compliance with the standard, each path must be
similarly repeatable and comparable.
2.2.6 Administration and Compliance. The standard will be more adoptable by reference and applied
where the criteria related to administering, documenting, and verifying compliance are combined and
located into one section in the standard titled “Administration and Compliance.”
2.2.7 Normative References. The Project Committee Manual of Procedures (PC MOP) defines a normative
reference as “a reference to a document that establishes a requirement necessary to comply with the
referencing standard.” For all standards, normative references must be specifically referenced by
publication date, approval date, or version number.
2.2.8 Informative Information in Normative Sections. The PASA defines the use and limits of
informative information within normative sections of ASHRAE Standards as:
informative notes: explanatory information, appearing in a standard, that does not contain
requirements or any information considered indispensable for the use of the standard. Informative
notes are to begin with the words “(Informative Note(s))” and be placed after the section of the
standard to which the note applies. If the informative note is more than two sentences, the
information must be placed in an informative annex and referred to by the informative note.
Where there is more than one informative note, the notes must be numbered sequentially.

4 

INFORMATIVE ANNEX A
CODE-INTENDED STANDARDS: EXAMPLES AND RATIONAL
A1. Conformity Assessment
Conformity assessment is the mechanism(s) by which documentation and verification that something
required has been realized. For the purposes of this document, conformity assessment means “any
activity to determine, directly or indirectly, that a process, product, or service meets relevant technical
standards and fulfills relevant requirements.” Examples of conformity assessment activities include
testing, surveillance, inspection, auditing, certification, registration, and accreditation.
For example, a test standard clearly establishes uniform provisions for conducting a test or other activity
to verify an outcome. Some ASHRAE standards are themselves test standards, while other ASHRAE
standards refer to test standards developed by ASHRAE or others.
As stated in Section 2.2.6, normative portions of ASHRAE standards need to reference standards or other
documents with a specific publication or approval date included in the reference. Not doing this would
amount to acceptance of future versions of the reference materials.
Examples from selected ASHRAE standards are provided below to highlight conformity assessment
associated issues, why there are potential issues, and how to more appropriately present the information in
the standard.
A1.1 Approved Agency
Fenestration and Doors. Air leakage for fenestration and doors shall be determined in
accordance with NFRC 400. Air leakage shall be determined by a laboratory accredited by a
nationally recognized accreditation organization, such as the National Fenestration Rating
Council, and shall be labeled and certified by the manufacturer. Air leakage shall not exceed 1.0
cfm/ft2 for glazed swinging entrance doors and for revolving doors and 0.4 cfm/ft2 for all other
products.
As stated in Section 2.2.2, third-party testing, certification, listing, labeling or other entities engaged in
documenting or verifying compliance with any part of the standard cannot be included in the standard by
name but instead must be referred to as an “approved agency.” Federal, state, and local agencies that
formulate and implement associated laws and regulations based on or through adoption of the ASHRAE
standard by reference have the authority to determine what third-parties are and are not acceptable by
name or by reference to a nationally recognized accreditation program. If not in a regulatory context,
those that adopt and use the standard will determine who they consider suitable to conduct conformity
assessment on their behalf.
Consider the suggested revision below of the existing standard provision shown above. As revised, the
issue of naming a particular conformity assessment organization is removed. The reliance on the test
standard is retained, and the decision as to who is an “approved agency” is left up to the entity adopting or
requiring conformance with the standard. Note that a definition of approved agency is provided in Section
2.2.2 for inclusion in ASHRAE standards where the issue of conformity assessment arises.
Fenestration and Doors. The air leakage rate of glazed swinging entrance doors and revolving
doors shall not exceed 1.0 cfm/ft2 and for all other products shall not exceed 0.4 cfm/ft2. The air
leakage rate shall be determined by an approved agency in accordance with NFRC 400 and the
product labeled.

5 

A1.2 Testing and Certification
Fenestration and Doors. Procedures for determining fenestration and door performance are
described in Section X. Product samples used for determining fenestration performance shall be
production line units or representative of units purchased by the consumer or contractor.
The conformity assessment issue in the example above is what product samples, how many, where they
are from, etc., is within the purview of the third-party testing or certification agency. It is not appropriate
to provide these in the standard unless the PC feels the standard needs to have a specific section on
conformity assessment. If so, then care must be taken to ensure that similar detail is provided for all other
products and materials in the standard so that there is consistency on this issue where the standard has
criteria applicable to multiple products.
A1.3 Alternative Paths, Consistency, and Comparability
U-factor: U-factors shall be determined in accordance with NFRC 100. U-factors for skylights
shall be determined for a slope of 20 degrees above the horizontal.
Exceptions:
a. U-factors from Section X which applies to unlabeled skylights) shall be an acceptable
alternative for determining compliance with the U-factor criteria for skylights. Where
credit is being taken for a low-emissivity coating, the emissivity of the coating shall be
determined in accordance with NFRC 300. Emissivity shall be verified and certified by
the manufacturer.
In the above example, the standard clearly states a reference test procedure for determining a thermal
property of skylights and then provides an alternative source for skylights that are unlabeled. For
consistency, the standard has identified a test standard that must then be referenced as the only acceptable
conformity assessment condition. Where default values are to be used for untested products, there is a
potentially inconsistent set of conditions: one being to test, but the other one indicating a test is not
required. With respect to the low-emissivity coating in the above example, the manufacturer can self-test
and certify emissivity data for their products as stated in the last sentence. This does not appear to be
consistent with other sections of the standard where a more rigorous conformity assessment activity is
required. In referencing test standards to guide performance of products, systems, materials, or other
components in an ASHRAE standard, the provisions in the standard must be sensitive to consistency on
conformity assessment related issues throughout the standard.
Another potential conformity assessment issue is referencing computer programs, websites, or other
sources of information that are not fixed in time by a publication date, approval date, or version number
as required in Section 2.2.6.
A2. Meshing with Other Codes and Standards
If an ASHRAE code-intended standard is coordinated with other codes and standards then the ASHRAE
standard can mesh with those other documents, and collectively they address the same or a broader scope
than the ASHRAE standard addresses. If the ASHRAE standard cannot mesh with other relevant
documents, then it will either not be adopted by reference or will be adapted into those other documents
so it can be used with them. In either case, the criteria in the ASHRAE standard may not be what is
ultimately adopted and required to be satisfied. This would be less likely to occur with method of test
standards, which in and of themselves, are generally designed to stand alone, or with standards associated
6 

with measurement data or expression of performance. In addressing this issue, consider if the standard
can stand alone where applied or, like one piece in a jigsaw puzzle, it is likely to be part of, or related to, a
broader set of requirements comprised of multiple documents. If the latter situation is envisioned, then
the standard needs to be written so it can mesh with those other documents.
Consider the following examples from ASHRAE standards that highlight this issue. It is important to
emphasize that the wording presented is certainly acceptable if the ASHRAE standard is the only code or
standard applied to the subject. If not, then those other documents can conflict with the ASHRAE
standard and preclude the ASHRAE standard being adopted by reference, cause it to be adapted or
modified by another Standards Development Organization (SDO), or cause it to be adapted or modified
by the entity adopting the ASHRAE standard.
A2.1 Compatibility Regarding Building Types and Spaces
Commercial occupancy is a premise or that portion of a premise where people transact business,
receive personal service, or purchase food and other goods. Commercial occupancies include,
among others, office and professional buildings, markets (but not large mercantile occupancies),
and work or storage areas that do not qualify as industrial occupancies.
Large mercantile occupancy is a premise or that portion of a premise where more than 100
persons congregate on levels above or below street level to purchase personal merchandise.
The terms “commercial occupancy” and “large mercantile occupancy,” while usable within the context of
a specific ASHRAE standard, are not correlated with other ASHRAE standards nor are they in line with
the definition of building use groups as provided in other codes and standards. This adversely affects the
ability of those other codes and standards to adopt the ASHRAE standard by reference to address the
subject covered. Use of the language in the above example would not only prevent having the standard
adopted by reference, but would also (a) necessitate the adaptation of parts of the ASHRAE standard
within those other codes and standards, and (b) require some “guessing” on the part of those adapting the
criteria in the ASHRAE standard as to how the criteria should be applied to the building types and spaces
contained in their documents.
A2.2 Compatibility Regarding Components of Buildings
building entrance: any doorway, set of doors, turnstile, vestibule, or other form of portal that is
ordinarily used to gain access to the building by its users and occupants.
The terms “entrance” and “main entrance” have specific meanings in building and fire codes. If it is the
intent of the ASHRAE standard using the above definition to address all building entrance doors without
exception, the definition could be revised to be consistent with the terms used in building and fire codes.
If the intent is to just address some entrances in a different way than currently addressed in building and
fire codes (e.g., entrance, main entrance, or accessible entrance), then the standard could be revised to
either refer to or use the definitions in those other documents. Moreover, if there is a specific need for a
difference, then the PC can develop new terms and definitions to address the issues that are unique to
entrances covered by the ASHRAE standard.
A2.3 Compatibility Regarding Building Systems
Exception: Commercial kitchen hoods used for collecting and removing grease vapors and
smoke.
7 

Other codes and standards addressing this subject use the terms Type I and Type II hoods to describe the
effluent conducted by the hood. The example above from an ASHRAE standard can stand alone, but it is
more likely that it would be applied with other codes and standards addressing this topic and additional
topics associated with mechanical systems in buildings. In not being coordinated with other codes and
standards, it will be difficult to claim the exception intended in the ASHRAE standard on a uniform basis.
This issue could be addressed by changing the ASHRAE standard to exempt “Type I hoods” and then
define Type I hoods in the definitions section of the ASHRAE standard.
A2.4 Including Criteria Already in Other Standards
Feeders. Feeder conductors shall be sized for a maximum voltage drop of 2% at design load.
Branch Circuits. Branch circuit conductors shall be sized for a maximum voltage drop of 3% at
design load.
The provisions shown in above example regulate the size of electrical system components in buildings.
While these provisions can be applied using the ASHRAE standard alone, the ASHRAE standard must
also be applied to buildings with a myriad of other codes and standards. One of those other codes and
standards already contains such a provision, and that standard is widely adopted to regulate electrical
system safety and performance. Including this provision in an ASHRAE standard where it is already
contained and maintained in another creates a situation where two standards have criteria on the same
topic and could diverge at any time. A conflict with another code or standard that is clearly the authority
on a subject can be avoided by simply referring to that other code or standard and the specific criteria
therein.
A2.5 Compatibility on Definitions of Terms
Exception: Lighting in spaces where patient care is rendered.
The term “patient care” is not defined in the above example, but would be an appropriate definition in the
ASHRAE standard. However, that definition must be correlated with other codes and standards
governing health care, although those definitions could cast a very wide net allowing this exception to
possibly be used where it is not necessarily intended by the standard. If it is determined in this case that
the patient care definition intended by the standard is the same as that in other codes and standards, then
the definition in the ASHRAE standard must be consistent with that definition. On the other hand, if not
the same as that in other codes and standards, then the ASHRAE standard could define another term that
would represent a subset of patient care to eliminate any potential conflict between the ASHRAE standard
and the other related codes and standards.
A3. Identification of Responsible Parties
Identification of responsible parties is relevant to ensuring that if something is to be done that someone or
some entity is named as having responsibility to do it, and if someone is to receive it, then that someone
or entity is also named. This is an important issue because if something is required to be done but no
responsible party is named, then there is no mechanism to ensure what is required by the standard actually
takes place. Without specifying a responsible party, the standard leaves it to those adopting the ASHRAE
standard to define the responsible party themselves. If something is to be done and someone is supposed
to do it or be involved in its development or delivery, then the ASHRAE standard is the place to establish
8 

the applicable and governing criteria. In addition, in establishing those criteria it is important to focus on
a particular skill set as opposed to using specific names, titles, job descriptions, etc.
A related item associated with compliance verification is simply if compliance with the stated provisions
can be verified, at what time in the process and by whom. If the standard provides a requirement that is
intended to be enforced at one point in time but there is no entity likely to be available to ensure
compliance, then that provision may be unenforceable (e.g., a requirement that a system be operated in a
particular manner where there is no one likely to be available to verify compliance). As such, it is a
reason not to adopt the standard, a source of amendment, or something in the standard that is not
followed.
A3.1 Indicating Who Performs a Required Test
Type II Hood Performance Test. A performance test shall be conducted upon the completion of
— and before final approval of — installation of a ventilation system serving commercial cooking
appliances. The test shall verify the rate of exhaust airflow required by Section X. The permit
holder shall furnish the necessary test equipment and devices required to perform the tests.
Who is responsible for conducting the test? There are many entities (contractor, building owner,
designer, hood manufacturer, inspector, etc.), who can conduct the required test, and, in not indicating the
necessary qualifications of those considered appropriate to conduct the test, the standard is silent on that
issue and provides no guidance to those adopting the ASHRAE standard. The need for standardization
might not be important for those that only have to deal with such a test one time and in one place. But for
those who design, construct, operate, own, insure, and perform other duties associated with this topic, the
failure of the standard to provide specific guidance as to the qualifications of the intended responsible
party for conducting the tests means there are likely to be as many different sets of guidance or
requirements on this issue as there are adopting entities. Clearly, if practical, it is preferable for the
ASHRAE standard to identify the responsible parties and their necessary qualifications where
appropriate. As the developing organization, ASHRAE is in the best position to address this issue.
The following is a potential revision of the example above that focuses on identification of the responsible
party:
Type II Hood Performance Test. A performance test shall be conducted by an approved thirdparty upon the completion of — and before final approval of — installation of a ventilation
system serving commercial cooking appliances. The test shall verify the rate of exhaust airflow
required by Section X and the test results provided by the approved third-party to the authority
having jurisdiction over the final approval of the system. The permit holder shall furnish the
necessary test equipment and devices required to perform the tests.
A3.2 Who Provides Required Information
Supplemental Information. Supplemental information necessary to verify compliance with this
standard, such as calculations, worksheets, compliance forms, vendor literature, or other data,
shall be made available where required by the building official.
Who is required to make the supplemental information available (owner, contractor, registered design
professional, manufacturer, etc.) and what qualifications must they possess? Without a designation of
9 

responsibility and qualifications, the enforcement authority (code official) is placed into the position of
making the selection, which could delay the approval of a project if the standard does not designate a
responsible party. The PC is in the best position to list those responsible for providing this information.
A3.3 Who Provides a Required Report
General. Construction documents shall require that all HVAC systems be balanced in accordance
with generally accepted engineering standards (see Informative Appendix E). Construction
documents shall require that a written balance report be provided to the building owner or the
designated representative of the building owner for HVAC systems serving zones with a total
conditioned area exceeding 5000 ft2.
Who is responsible for providing the written balance report? Should the construction documents require
that the balance report be provided and then be further required to designate the responsible party? The
PC is in the best position to make this decision and put it into the standard instead of leaving the decision
up to those adopting the standard by reference or those using the standard.
A3.4 Who Performs Required Calculations
Load Calculations. Service water heating system design loads for the purpose of sizing systems
and equipment shall be determined in accordance with manufacturers’ published sizing
guidelines or generally accepted engineering standards and handbooks acceptable to the
adopting authority (e.g., 2011 ASHRAE Handbook — HVAC Applications).
Who is responsible for determining the design loads? Again, the PC is in the best position to make the
designation. In addition, there is one additional aspect of the provision above; there are no sizing
limitations in the standard for the system. Once the loads are calculated, what would one do with them
other than verify that they had been determined? In this instance, the standard could establish some
criterion that is based on the load calculations; otherwise, why make someone responsible for determining
the loads?
A3.5 Who Provides Required Construction Documents
Drawings. Construction documents shall require that within 30 days after the date of system
acceptance, record drawings of the actual installation shall be provided to the building owner,
including…
Manuals. Construction documents shall require that an operating manual and maintenance
manual be provided to the building owner. The manuals shall include, at a minimum, the
following…
Who is responsible for providing the required documents, or should the criterion be “….shall require that
the registered design professional of record provide ….”?
A4. Simple and Repeatable
Ensuring the criteria in a standard are simple and repeatable is important because this affects the ability to
understand, apply, implement, or document or verify compliance with a standard. In addition, the intent
of a standard is to foster uniformity and consistency in the subject covered by the standard; this is
adversely affected by the level of complexity in the standard. Where there are multiple paths to
10 

compliance with the standard, each path must be similarly repeatable and comparable. If not, users are
more likely to take the path of least resistance and that path will become the singular path in the standard.
Examples of current standards provisions and suggestions for simplification are shown below. Where
considering this issue, first focus on what is to be required in the standard and produce a first draft of a
provision that is in accordance with the other issues described in this Annex. Once that is completed,
determine if the text specifically communicates what is intended to be conveyed and that all involved will
draw the same conclusion from reading the text. Then generate and evaluate alternative ways to further
refine, simplify, and present the provision. As a final step, consider the need for consistency in the
application and use of the text. Continue this process until there is a clear and concise statement that
conveys the requirement.
A4.1 Simplification - First Example
budget building design: a computer representation of a hypothetical design based on the actual
proposed building design. This representation is used as the basis for calculating the energy cost
budget.
In the revision of this definition below, the second sentence has been combined with the first to
simplify the definition.
budget building design: a computer representation, used as the basis for calculating the energy
cost budget, of a hypothetical design based on the actual design of the proposed building.
Note also that it is not necessary to provide background, reasons, or informative statements for provisions
in standards. Focus on limiting the text in a standard to the provisions that are necessary to meet the
purpose of the standard. If the need for informative text, commentary and other language to explain what
is in the standard or how it is to be used continues to arise, this may be a self-admission that there is a
need to continue reviewing the core provisions in the standard to ensure they have been crafted in a
simple and repeatable manner.
A4.2 Simplification - Second Example
Inspections. All building construction, additions, or alterations subject to the provisions of this
standard shall be subject to inspection by the building official, and all such work shall remain
accessible and exposed for inspection purposes until approved in accordance with the procedures
specified by the building official. Items for inspection include at least the following:
a.
b.
c.
d.
e.
f.

wall insulation after the insulation and vapor retarder are in place but before concealment
roof/ceiling insulation after roof/insulation is in place but before concealment
slab/foundation wall after slab/foundation insulation is in place but before concealment
fenestration after all glazing materials are in place
mechanical systems and equipment and insulation after installation but before concealment
electrical equipment and systems after installation but before concealment

Consider this simplified revision:
Inspections. Everything subject to the provisions of this standard shall be subject to inspection by
the building official and shall remain accessible and exposed for inspection purposes until
approved by the building official.
11 

The term “approved” has a specific meaning and definition in codes, so it would be advantageous to include
it in the definitions section of the ASHRAE standard (approved by the code official as a result of
investigation and tests conducted by him or her, or by reason of accepted principles or tests by nationally
recognized organizations1), thereby allowing the text to be simplified as shown above. Anytime a term or
concept needs to be defined to facilitate understanding and use of the standard, it needs to be defined in the
definitions section unless it is used only once, in which case, it can be addressed at the point in the standard
where the term or concept is used. Also, given that this related set of standards is focused on minimum
requirements, there is no need to list anything other than the minimum, so the text listed below could be
deleted. Clearly, one need only read the standard to know that things are “subject to the provisions of the
standard,” which is another reason for not listing them in the standard.
A4.3 Clarification - First Example
clerestory: that part of a building that rises clear of the roofs or other parts and whose walls
contain windows for lighting the interior.
What are “other parts?” Will designers, specifers, and code officials all have a uniform interpretation and
application of this definition? Is the text “for lighting the interior” necessary? Does this mean that if the
wall has a window but it is not for lighting the interior, then it is not a clerestory, and if not, then what is
it?
A4.4 Clarification - Second Example
Space Control. Each space enclosed by ceiling-height partitions shall have at least one control
device to independently control the general lighting within the space. Each manual device shall
be readily accessible and located so the occupants can see the controlled lighting.
a. A control device shall be installed that automatically turns lighting off within 30 minutes of
all occupants leaving a space, except spaces with multi-scene control, in
1. classrooms (not including shop classrooms, laboratory classrooms, and preschool
through 12th grade classrooms),
2. conference/meeting rooms, and
3. employee lunch and break rooms.
These spaces are not required to be connected to other automatic lighting shutoff controls.
Is it clear to what “these spaces” is referring? Is it the three listed spaces or the spaces enclosed by ceiling
height partitions? Is the second sentence addressing manual devices confusing since the provision
requires some spaces to have automatic controls and the opening sentence requires at least one control?
Where composing provisions for a standard, it can be helpful to map out the intent and flow of the
provisions via a diagram, and then, where that diagram matches the intent of those writing the standard,
craft language to describe the diagram that then becomes the text for the standard. Such a logic statement
might read as follows, which could then be transferred into text for the standard.

1

 ICC International Energy Conservation Code, 2012 

12 





Each space with ceiling height partitions must have at least one control to control only the
lighting in that space
Where that control is readily accessible and located so those in the space using the control can see
the lighting that is controlled
Where that space is a classroom, conference/meeting room, or employee lunch or break room that
does not have multi-scene controls, then the control device must automatically turn off the
lighting within 30 minutes of all occupants leaving the space and those spaces need not be
connected to any other automatic lighting shutoff controls

A4.5 Clarification for Consistency
Foundation vents shall not interfere with the insulation.
While the intent may be generally understood, any 10 different individuals would likely visualize the
application of this text differently and apply it differently. Recognize there are vents for ventilation but
there may also be vents to reduce pressures of flooding on walls, so it is to some degree impossible to
even verify this in the field unless those conditions exist. If the standard cannot clearly state what is
required so most everyone can understand and apply the provisions uniformly, then evaluate the need for
the provision. Alternative criteria such as “floor insulation must be installed so it is at least X in. above
the top of any foundation wall vent” might be considered in this instance.
A4.6 Clarification to Ensure Uniform Interpretation and Application
Insulation Protection. Exterior insulation shall be covered with a protective material to prevent
damage from sunlight, moisture, landscaping operations, equipment maintenance, and wind.
For a given application, is it likely that there will be a uniform understanding of what constitutes a
protective material and what UV, moisture, landscaping operations, and wind impacts must be addressed
by that protective material? Would landscaping operations be known and capable of being evaluated at
the time that compliance with this provision is conducted? Are they well enough known where
performing an inspection of the exterior insulation? Without some additional specifics as to methods of
protection and how protection performance is to be measured and expressed, the inclusion of this
provision, while well intended, could easily be disregarded or cited as an example why the standard
cannot be adopted by reference.
It is also relevant to simplicity and repeatability that standards, by definition, are intended to provide for
consistency and comparability on the issues addressed in the standard. As discussed in the above
examples, if there are multiple paths to compliance in a standard and the paths are not equal, then the path
of least resistance becomes the standard. In developing a standard, it is important to establish clear
minimum requirements even if multiple paths to compliance are desired. If the standard establishes
criteria beyond specific minimums, this can adversely affect the simplicity of the standard and its
adoptability by reference.
A5. Consolidate Administration and Compliance Criteria
Consolidation of administration and compliance criteria is simply the placement of all the provisions of a
standard related to administration, compliance documentation and verification, and other matters not
specific to the technical requirements in the standard in one place as stated in Section 2.2.5. This is
important because the location of these provisions in one place in makes the standard easier for users to
13 

implement, apply and document or verify compliance with the standard compared to them being
separately located throughout the standard, thereby increasing the chances that the standard will be
adopted by reference.
Section A5.1 provided examples of provisions currently in an ASHRAE standard that relate to
administration of the document within a building regulatory context. These appear throughout the standard
at the point where they are considered relevant, but could be more appropriately included in a section on
administration and compliance documentation and verification; an example of which is shown in Section
A5.2. This helps those having to comply with the document and those enforcing the document to have a
clearer understanding of how the document is to be administered and applied, and what is needed to
document and verify compliance. Unless there is a unique and significant reason to keep one or more
administrative provisions in a position adjacent to the technical requirement to which they apply, all
provisions, such as those below, should be placed in the section in the standard on administration and
compliance verification. Note that no attempt has been made to revise the actual text in these provisions.
A5.1. Criteria Located Throughout A Standard
Motor Nameplate Horsepower. For each fan, the selected fan motor shall be no larger than the
first available motor size greater than the bhp. The fan bhp must be indicated on the design
documents to allow for compliance verification by the code official.
It is interesting to note that this is the first place in this particular standard where there is a specific
requirement on the plans. It is advantageous to the application and use of a standard to list all those
specific data requirements in one place in the administrative section of the standard.
Drawings. Construction documents shall require that, within 90 days after the date of system
acceptance, record drawings of the actual installation provided to the building owner or the
designated representative of the building owner. Record drawings shall include, as a minimum,
the location and performance data on each piece of equipment, general configuration of duct and
pipe distribution system including sizes, and the terminal air or water design flow rates.
Additions to Existing Buildings. Service water heating systems and equipment shall comply with
the requirements of this section.
Exception: Where the service water heating to an addition is provided by existing service
water heating systems and equipment, such systems and equipment shall not be required
to comply with this standard. However, any new systems or equipment installed must
comply with specific requirements applicable to those systems and equipment. (This type
of provision—applicability of various parts of the standard to additions, renovations,
etc., would seem to be fairly uniform throughout the standard. As such, it may be more
appropriate to locate these provisions collectively in an administrative section and then
make them more generic so they clearly state that anything new added to an existing
building that replace something that pre-existed (e.g., a new piece of equipment or new
controls) must meet the standard as applicable for new construction.)
Drawings. Construction documents shall require that within 30 days after the date of system
acceptance, record drawings of the actual installation shall be provided to the building owner,
including
14 

a. a single-line diagram of the building electrical distribution system; and
b. floor plans indicating location and area served for all distribution.
Manuals. Construction documents shall require that an operating manual and maintenance
manual be provided to the building owner. The manuals shall include, at a minimum, the
following: (include a list of what is required).
Trade-Offs Limited to Building Permit. Where the building permit being sought applies to less
than the whole building, only the calculation parameters related to the systems to which the
permit applies shall be allowed to vary. Parameters relating to unmodified existing conditions or
to future building components shall be identical for both the energy cost budget and the design
energy cost calculations. Future building components shall meet the prescriptive requirements of
Sections x, y, or z.
Envelope Limitation. For new buildings or additions, the building Energy Cost Budget Method
results shall not be submitted for building permit approval to the authority having jurisdiction
prior to submittal for approval of the building envelope design.
A5.2 Combining and Organizing to Create a Focus on Compliance
The example below is from a draft ASHRAE standard showing how the provisions associated with
administration and compliance can be combined. Again, no attempt has been made to revise or change
the wording to address any mandatory language or other code-intended language issues.
4. ADMINISTRATION AND ENFORCEMENT
4.1 General. Building projects shall comply with Sections x through y.
4.2. Application to Buildings
4.2.1 New Buildings. New buildings shall comply with the provisions of Sections x through y as
applicable.
4.2.2 Additions to Existing Buildings. Additions to existing buildings shall comply with the
provisions of Sections x through y as applicable.
4.2.3 Alterations of Existing Buildings. Alterations of existing buildings shall comply with the
provisions of Sections x through y as applicable to the scope of work associated with the
alteration. Nothing in this standard shall require that any portion of an existing building not
associated with the alteration be brought into compliance with this standard. Nothing in this
standard shall require compliance with a provision of this standard if such compliance will result
in the increase of energy or water consumption of the building or production of increased
emissions or effluent of waste.
Exception: Any building or portion thereof that has been specifically designated as
historic.
4.2.4 Changes in Occupancy or Space Use. Spaces in a building that are converted to a different
occupancy or use to an occupancy or use within the scope of this standard as covered in Section x
15 

and such conversion involves construction and approval by the authority having jurisdiction,
those spaces shall be brought into compliance with all the applicable requirements of this
standard.
4.3 Compliance
4.3.1 Administrative Requirements. Administrative requirements relating to permit
requirements, enforcement by the authority having jurisdiction, interpretations, claims of
exemption, and rights of appeal shall be those specified by the authority having jurisdiction.
4.3.2 Technical Requirements. The information shown in Table X shall be provided on the plans
and specifications.
Note that a Table X would be included based on the content of and requirements in the standard.
4.3.3 Alternative Materials, Methods of Construction or Design. The provisions of this standard
are not intended to prevent the use of any material, method of construction, design, equipment or
building system not specifically prescribed herein, provided they have been approved by the
authority having jurisdiction as meeting the intent of this standard.
4.3.4 Validity. If any term, part, provision, section, paragraph subdivision, table, chart or
referenced standard of this standard shall be held unconstitutional, invalid or ineffective, in
whole or in part, such determination shall not be deemed to invalidate any remaining term, part,
provision, section, paragraph, subdivision, table, chart or referenced standard of this standard.
4.3.5 Other Laws. The provisions of this standard shall not be deemed to nullify any provisions of
local, state or federal law. Where there is a conflict between a requirement of this standard and
such other law affecting design, construction or operation of the building, precedence shall be
determined by the authority having jurisdiction.
4.3.6 Referenced Standards. The standards reference in this standard and listed in Section x
shall be considered part of the requirements of this standard to the prescribed extent of such
reference. Where differences occur between the provision of this standard and referenced
standards, the provisions of this standard shall apply.
4.3.7 Normative Appendices. The normative appendices to this standard are considered to be
integral parts of the mandatory requirements of this standard, which, for reasons of convenience,
are placed apart from all other normative elements.
4.3.8 Informative Appendices. The informative appendices to and the informative notes located
within this standard contain additional information and are not mandatory or part of this
standard.

16 

EXHIBIT 104

Capitol Hill Event to Feature Policy and Business Leader Insights on Voluntary Standards and Conformance

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12/03/2015
The American National Standards Institute (ANSI) has teamed
with the National Association of Manufacturers (NAM) to cohost an exclusive Shopfloor Series event on Capitol Hill entitled
“What Do Airplanes, Robots, Toys, Flat Screen TVs
Amusement Parks & 3D Printing Have in Common?” The event
—on December 4, 2015, from 12:00-1:30 p.m. EST—will
feature discussions between policy and business leaders who
will highlight the importance of government participation in and
the reliance on voluntary standards and conformance.
The session will be held in the Rayburn House Office Building
2123 and will be co-sponsored by ASTM International and
Underwriters Laboratories (UL) and the American Bar Association. Featured experts will include Jeff
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well as representatives from the Toy Industry Association (TIA), ANSI, ASTM International, the National
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EXHIBIT 105

AMERICAN BAR ASSOCIATION
SECTION OF ADMINISTRATIVE LAW AND REGULATORY
PRACTICE
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1
2
3
4
5
6
7
8
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RESOLVED, That the American Bar Association urges Congress to amend 5 U.S.C.
552(a)(1) of the Freedom of Information Act (FOIA) by supplementing the obligation of
all federal administrative agencies to publish their substantive rules of general
applicability in the Federal Register. Specifically, Congress should require that when a
standard drafted by a private organization is exempted from Federal Register publication
because it has been “incorporated by reference” (IBR) into a substantive rule of general
applicability, the rulemaking agency must ensure meaningful free public availability of
the incorporated text, such as through online access in a centralized online location or
access in all government depository libraries.
FURTHER RESOLVED, That Congress should amend 5 U.S.C. 553, the Administrative
Procedure Act’s rulemaking provisions, to require meaningful free public availability of a
proposed IBR standard’s text during the public comment period.
FURTHER RESOLVED, That Congress should ensure that private organizations, where
appropriate, have access to compensation for financial losses attributable to making their
standards publicly available.

REPORT

I. INTRODUCTION AND BACKGROUND
For over two centuries, the United States has maintained a constitutive tradition of
meaningful free access to our binding laws: that all citizens should be able to see the law
is bedrock. Since the 1800s, Congress has provided free public access to federal statutes
and, since the1930s, to federal regulations as well, through a network of state and
territorial libraries, followed by the creation of the Federal Depository Library System.1
Congress further deepened the tradition by requiring the Government Printing Office to
make available universal online access to statutes and regulations2 and then requiring
online public access to other government documents and materials in the Electronic
Freedom of Information of Act Amendments in 1996 and the e-Government Act of
2002.3
For numerous federal rules, however, public access is far from assured; these
rules can be difficult to find and costly to read. The Freedom of Information Act
generally requires Federal Register publication for all agency “substantive rules of
general applicability” and “statements of general policy or interpretations of general
applicability.”4 However, it allows, in the so-called “incorporation by reference”
provision of 5 U.S.C. 552(a)(1), that “matter reasonably available to the class of persons
affected thereby [may be] deemed published in the Federal Register when incorporated
by reference therein with the approval of the Director of the Federal Register.”5
To save resources and build on private expertise, federal agencies have, on
numerous occasions, worked with private organizations, incorporating privately drafted
standards by reference into thousands of federal regulations. The Office of the Federal
Register (OFR) must approve all agency incorporations by reference, but the Freedom of
Information Act provides no further specifics on what level of access might be
understood to make a particular standard “reasonably available” and thus eligible for
incorporation by reference. Meanwhile, OFR has declined to define “reasonably
available” in its regulations, despite its statutory responsibility to approve agency

1

See H.R. Journal, 3d Cong., 2d Sess. 328-39 (1795) (describing Act of Mar. 3, 1795), Act
of Dec. 23, 1817, res. 2, 3 Stat. 473; Act of Feb. 5, 1859, ch. 22, § 10, 11 Stat. 379, 381.
2
44 U.S.C. § 4102(b)(2006) (capping recoverable costs as “incremental costs of
dissemination” and requiring no-charge online access in government depository libraries). The
GPO charges no fee whatsoever for online access.
3
Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, §
4(7), 110 Stat. 3048, 3049 (1996); E-Government Act of 2002, Pub. L. No. 107-347, §§ 206(a)(d), 207(f), 116 Stat. 2899, 2915-16, 2918-19 (codified as amended at 44 U.S.C. § 3501 note
(2006)).
4
5 U.S.C. 552(a)(1).
5
Id.

2

incorporations.6 See 1 C.F.R. 51.7(a). Research also has revealed no public
consideration by OFR of access charges to incorporated standards.7
The Code of the Federal Register (C.F.R.) presently contains nearly 9,500 agency
incorporations by reference of standards. These “IBR rules” have the same legal force as
any other government rule. Some IBR rules incorporate material from other federal
agencies or state entities, but thousands of these rules are privately drafted standards
prepared by so-called “standards development organizations,” or “SDOs.”8 Standards
development organizations range from the Society of Automotive Engineers to the
American Petroleum Institute. As the Office of the Federal Register has explained,
“[t]he legal effect of incorporation by references is that the material is treated as if it were
published in the Federal Register and CFR. This material, like any other properly issued
rule, has the force and effect of law. . . mak[ing] privately developed technical standards
Federally enforceable.”9
Federal agencies seek to use privately-drafted IBR standards on subjects ranging
from toy safety,10 crib, toddler bed, and stroller safety, safety standards for vehicle
windshields (so they withstand fracture),11 placement requirements for cranes on oil
drilling platforms on the Outer Continental Shelf,12 and food additive standards, 13 to
6

See Incorporation by Reference, 79 Fed. Reg. 66,267, 66,270 (Nov., 7, 2014) (final rule).
Beyond that, the OFR Director is to assess whether incorporation would “substantially reduce the
volume of material published in the Federal Register,” and whether the material is “usable,”
considering “the completeness and ease of handling of the publication; and . . . [w]hether it is
bound, numbered, and organized.” 1 C.F.R. 51.7(a). In the digital age, these requirements now
would seem to serve little purpose.
7
E.g. Consumer Product Safety Commission, Children’s Gasoline Burn Prevention Act
Regulation, 80 Fed. Reg. 16,961, 16,962-63 (Mar. 31, 2015) (OFR approval of incorporation by
reference of ASTM F2517-15 despite lack of free access); www.astm.org (charging $43 for
standard; unavailable in reading room). As of November, 2014, an agency requesting approval of
incorporation by reference must itself discuss how the materials are “reasonably available to
interested parties.” 1 C.F.R. 51.5(a)(1), but it is unclear whether the OFR will make any
independent determination on that question or simply defer to the agency.
8
Emily J. Bremer, Incorporation by Reference in an Open-Government Age, 36 Harv. J. L.
& Pub. Pol’y 131 (2013); Nina Mendelson, Private Control over Access to the Law: The
Perplexing Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737 (2014); Peter
Strauss, Private Standards Organizations and Public Law, 22 Wm. & Mary Bill Rts. J. 497
(2013).
9
http://www.archives.gov/federal-register/cfr/ibr-locations.html#why. In some instances, as
discussed below, a regulated entity might be able to argue that the lack of public access
undermines notice sufficiently to prevent federal enforcement.
10
E.g., 16 C.F.R. §§ 1505.5, 1505.6 (CPSC requirements for electrically operated toys,
including toys with heating elements, intended for children’s use, incorporating by reference
National Fire Protection Association and ANSI standards)
11
49 C.F.R. § 571.2015.
12
30 C.F.R. 250.108 (incorporating by reference American Petroleum Institute
Recommended Practice 2D).
13
See 21 C.F.R. § 172.831 (sucralose regulation, incorporating by reference the Food
Chemical Codex, 4th edition).

3

operating storage requirements for propane tanks, aimed at limiting the tank’s potential to
leak or explode.14 Executive policy, embodied in Circular A-119, now encourages
agencies to contribute funds to private standards drafting as well as informal agency staff
participation in the SDO process.
Meanwhile, public access to such standards can be extremely difficult, as it is
typically impeded by privately set access charges. Unlike the U.S. Code and the rest of
the C.F.R., there is no assured free access to IBR rules either online or in the nearly 1800
government depository libraries. Under OFR’s approach, these standards can be freely
read by the public in the Washington, D.C. reading room of the Office of the Federal
Register, but only by written request for an appointment.15 Apart from this, OFR refers
the public to the SDO. These IBR standards accordingly are strewn across many
individually-maintained private websites. SDOs also can set a fee for access, typically
one that far exceeds the transactions costs, such as copying costs, of making a standard
available.
Membership in an SDO usually affords discounted access to its standards, but
such memberships are costly; for example, the American National Standards Institute
charges $ 750 per year. Otherwise, access to an individual standard can range from $40
to upwards of $1000. The incorporated safety standard for seat belts on earthmoving
equipment such as bulldozers is currently priced at $72;16 the incorporated safety
standard for hand-held infant carriers is $43,17 and the current edition of the Food
Chemical Codex, which the FDA has incorporated by reference into food additive
standards, is priced at $ 499.18 As Professor Emily Bremer has reported, the average
price for just one incorporated pipeline safety standard is $150, while a complete set of
IBR standards implementing the Pipeline and Hazardous Materials Safety Act cost nearly
$10,000 as of September 2014.19 The cost of reading the two newly-incorporated-byreference standards for the packaging and transportation of radioactive material, to avoid
radiation leakage in transit, is $ 213.20
14

26 C.F.R. 1910.110(b)(3)(i) (incorporating by reference American Society for
Mechanical Engineers’ Boiler and Pressure Vessel Code (1968 edition)).
15
See Office of the Federal Register, “Where to Find Materials Incorporated by Reference
at NARA Facilities,” available at http://www.archives.gov/federal-register/cfr/ibr-locations.html#why.
Rulemaking agencies also sometimes make the text of IBR rules available for inspection in their
own reading rooms, again, typically located in Washington, D.C.
16
See 29 CFR 1926.602(a)(2)(i) (incorporating Society of Automotive Engineers Standard
J386-1969); standards.sae.org/j386_196903/. The price of $72 is for the current revision of
Standard J386. It is unclear whether the 1969 version can be accessed at all on SAE’s website.
17
See 16 C.F.R. 1225.2 (incorporating by reference ASTM F 2050-13a); www.astm.org. The
standard is inexplicably absent from the online reading room ASTM maintains for governmentincorporated standards.
18
See 21 C.F.R. 172.185(a) (test methods standard for TBHQ in the food additive);
https://store.usp.org/OA_HTML/ibeCCtpItmDspRte.jsp?item=344067.
19
Emily Bremer, On the Cost of Private Standards in Public Law, 63 U. Kansas L. Rev.
279 (2015).
20
See Nuclear Regulatory Commission, Revisions to Transportation Safety Requirements
and Harmonization with International Atomic Energy Agency Transportation Requirements, 80

4

The SDOs have no obligation to make standards available at any price, and some
standards, particularly older ones, are now simply unavailable from the SDOs. On the
other hand, SDOs occasionally charge more for an older version that an agency has
incorporated by reference into binding law—a reflection of the newly conferred
monopoly value--than for the SDO’s current version of those same standards.21
As publicly-filed comments and other public sources indicate, the fees charged for
IBR rules significantly obstruct citizens and entities from seeing the text of this law.
Regulated entities needing access to incorporated standards are often small businesses for
whom the mass of necessary standards may be a significant cost.22 For example, as the
Modification and Replacement Parts Association commented in response to the petition
for rulemaking, “The burden of paying high costs simply to know the requirements of
regulations may have the effect of driving small businesses and competitors out of the
market, or worse endanger the safety of the flying public by making adherence to
regulations more difficult due to fees . . . .”23
And given the access fees charged, members of the public affected by regulatory
frameworks relying upon IBR rules likely cannot afford to read these standards. For
Fed. Reg. 33,988, 34,010-11 (June 12, 2015) (reciting charges for incorporated by reference
standards).
21
For example, the American Herbal Products Association charges $250 for a digitalrights-protected copy of the first edition of its Herbs of Commerce, use of which is a legal
obligation under FDA regulations; the more recent second edition, a “must-have” for anyone in
the business but not yet made legally obligatory, can be bought as a book for $99. Peter Strauss,
Private Standards Organizations and Public Law, 22 Wm. & Mary Bill Rts. J. 497 (2013).
22
Public comments filed with the Office of Federal Register made this problem clear. The
National Propane Gas Association, an organization whose members are overwhelmingly (over
90%) small businesses, commented in response to OFR’s notice of proposed rule that the costs of
acquiring access “can be significant for small businesses in a highly regulated environment, such
as the propane industry.” See Comments of Robert Helminiak, National Propane Gas Ass’n,
OFR 2013-0001-0019 (Dec. 30, 2013), at 1; Comments of Jerry Call, American Foundry Society,
NARA-12-0002-0147 (June 1, 2012), at 1-2 (“Obtaining IBR material can add several thousands
of dollars of expenses per year to a small business, particularly manufacturers . . . [T]he ASTM
foundry safety standard alone cross references 35 other consensus standards and that is just the tip
of the iceberg on safety standards.”); Comments of National Tank Truck Carriers, NARA-20120002-0145 (small businesses “have no option but to purchase the material at whatever price is set
by the body which develops and copyrights the information. ... [W]e cite the need for many years
for the tank truck industry to purchase a full publication from the Compressed Gas Association
just to find out what the definition of a ‘dent’ was. ... HM241 could impact up to 41,366 parties
and ... there is no limit on how much the bodies could charge ... ”); Comments of American
Foundry Society, NARA-2012-0002-0147 (“$ 75 is not much for a standard, but a typical small
manufacturer, including a foundry, may be subject to as many as 1000 standards. The ASTM
foundry safety standard alone cross-references 35 other consensus standards and that is just the
tip of the iceberg ...”).
23
See Comment of the Modification & Replacement Parts Ass’n 14 (Regulations.Gov, filed
June 1, 2012), available at
http://www.regulations.gov/contentStreamer?objectId=09000064810266b8&disposition=attachm
ent&contentType=pdf

5

example, a staff attorney at Vermont Legal Aid filed a public comment indicating that the
costs of accessing IBR rules interfered with the ability of Medicare recipients to know
their rights.24
In a positive development, some of the many SDOs have begun to create online
reading rooms in which IBR rules can be freely viewed. But standards are still very hard
to locate, not consistently available, and readers must identify themselves, waive a
variety of rights, and even agree to broad indemnification and forum selection clauses in
order to see the text of the rules. And SDOs uniformly reserve the right to revoke the
access at will.
Agency use of IBR rules raises two particularly pressing issues. The first is the
lack of consistent and meaningful public access to the text of these binding federal rules.
While IBR rules are not formally secret, the financial obstacles that must be overcome to
read the text undermine any notion of meaningful public availability. Second, the lack of
access to proposed IBR rules, as well as supporting data, undermines the public’s right to
comment on proposed agency rules under the Administrative Procedure Act.
The present resolution would put the ABA on record in support of the principle of
meaningful public access to law, as well as public participation in federal regulation. The
ABA should speak now for two reasons: First, as described below, the Office of the
Federal Register has recently declined an opportunity to use its Freedom of Information
Act implementation powers to effectuate these principles. Second, agency use of
privately-drafted rules is likely to increase, given continuing agency resource constraints,
as well as executive and congressional policy favoring agency use of privately drafted
rules in preference to “government-unique” rules.25 Unfortunately, neither policy has
directly engaged the resulting public access problems. Only Congressional action will
remedy this unsatisfactory situation. A clear and strong statement by the ABA on the
topic should help prompt such action.

24

E.g., Comments of Jacob Speidel, Senior Citizens Law Project, Vermont Legal Aid,
OFR-2013-0001-0037 (Jan. 31, 2014), at 1 (price precludes “many Vermont seniors” from
accessing materials). See also Comments of Robert Weissman, Public Citizen, OFR 2013-00010031 (Jan. 31, 2014), at 1 (reporting on behalf of multiple nonprofit, public interest organizations
that “free access . . . will strengthen the capacity of organizations like ours to engage in
rulemaking processes, analyze issues, and work for solutions to public policy challenges . . .and
strengthen citizen participation in our democracy”); Comments of George Slover and Rachel
Weintraub, Consumers Union and Consumers Federation of America, OFR 2013-0001-0034 (Jan.
31, 2014) (noting importance of transparent standards to identify products that are not in
compliance with applicable standards so as to notify the agency and alert consumers).
25
See National Technology Transfer and Advancement Act of 1995, sec. 12(d), 15 U.S.C.
272 note (2012); Office of Mgmt & Budget, Circular A-119 Revised; Federal Participation in the
Development and Use of Voluntary Consensus Standards and in Conformity Assessment
Activities para. 1 (1998), available at http://whitehouse.gov/omb/circulars_a119.

6

II. DISCUSSION
A.

The Bedrock Principle of Public Access to the Law Should Be
Reaffirmed in the IBR Rules Setting

IBR rules are not formally “secret”—access is not prohibited outright. Selfevidently, however, the cost of reading it, together with the difficulty of finding it, render
these standards inaccessible to the public. At root, there must be meaningful free access
to all incorporated rules, if the evils of “secret law” that the Freedom of Information Act
was established to resist are to be avoided. In the words of Columbia Law Professor
Peter Strauss, joined by numerous other professors: “[I]n the age of information, secret
law, that the public must pay for to know, is unacceptable.”26 The ABA accordingly
should resolve that the Freedom of Information Act be clarified to ensure meaningful
levels of free public access to all binding law.
1. As the authors and owners of the law, the public has a right to
know it
First, free public access to the law is essential in a democratic society. As the 5th
Circuit explained in Veeck v. Southern Bldg. Code Cong. Int'l, free public access to the
law serves “the very important and practical policy that citizens must have free access to
the laws which govern them” if they are to be able to conform their conduct to them.27
Veeck relied principally on the Supreme Court’s holding in Banks v. Manchester that “[i]t
is against sound public policy to prevent [free access to judicial opinions], or to suppress
and keep from the earliest knowledge of the public the statutes.”28 As explained in Veeck,
these justifications are not simply “due process” arguments. Rather, they rest on the idea
that “public ownership of the law means precisely that ‘the law’ is in the ‘public domain’
for whatever use the citizens choose to make of it.”29
This “right to know” accrues to all citizens, not just those who must conform their
conduct to the law. Broad public access to IBR material, is as important as access by
directly regulated entities. “Th[e] ‘metaphorical concept of citizen authorship’” requires
free public access to the law as a foundation to a legitimate democratic society. “The
citizens are the authors of the law, and therefore its owners, regardless of who actually
drafts the provisions, because the law derives its authority from the consent of the public,
expressed through the democratic process.”30 Thus, even those who need not conform
their conduct to regulatory requirements have a right to know. As public comments filed

26

Incorporation by Reference, 77 Fed. Reg. 11,414, 11,415 (Feb. 27, 2012) (posting of law
professors’ petition to revise IBR rules; seeking comment on same).
27
293 F.3d 791, 795-800 (5th Cir. 2002) (en banc).
28
See 128 U.S. 244, 253 (1888) (quoting Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559
(1886)).
29
293 F.3d at 799.
30
Veeck, 293 F.3d at 799 (quoting Building Officials & Code Adm. v. Code Technology,
628 F.2d 730, 734 (1st Cir. 1980)).

7

to the Office of the Federal Register and the Office of Management and Budget make
clear, the public has an interest in reading IBR material.31
Ready access to standards that have been incorporated by reference is necessary
for citizens to know what their government is doing and to hold the government
accountable for serving – or not serving – the public interest. As President Obama stated
in his Memorandum on Transparency and Open Government, on January 21, 2009:
“Transparency promotes accountability and provides information for citizens about what
their Government is doing.” This transparency, including public access to the content of
regulations, is a critical safeguard against agency capture and other governance problems.
Transparency regarding the content of IBR standards is particularly important when that
material has been prepared, in the first instance, by private organizations rather than
governmental agencies – as when, for example, natural gas pipeline safety rules and
offshore oil drilling rules incorporate standards drafted by the American Petroleum
Institute, and even when motor vehicle safety standards incorporate standards drafted by
the Society of Automotive Engineers. We note that regulatory standards created by
industry associations such as the API, compared with professionally focused
organizations such as ASME, the American Society of Mechanical Engineers, may raise
particular concerns warranting public awareness. Still, this is not to criticize any
particular standard or organization, but to emphasize that transparency and ready access
are critical to ensuring that the government makes proper use of all incorporated material
and that adopted standards do, in fact, protect the public interest as required by statute.
And as the 5th Circuit pointed out in Veeck, citizens need access to the law not only to
guide their actions and to hold the government accountable, but “to influence future
legislation” and to educate others.32
2. Limits on public access raise constitutional difficulties
The current system may raise constitutional difficulties by allowing agencies to
reference incorporated material, when the public must pay to see that material. (Travel to
a Washington, D.C., reading room will not, for most, be a viable alternative.) First,
impediments to a regulated entity’s ability to access government standards raises due
process concerns. As noted, small businesses have complained that the access fees
charged to read the text of the law can be a significant obstacle to their ability to learn
their legal obligations. In the context of whether to sustain a changed agency
interpretation of a rule, the Supreme Court has endorsed “the principle that agencies
31

See supra note 24 (Vermont Legal Services comment); NARA-12-0002-0140
(Consumers Union, emphasizing the need for free access to standards to notify the CPSC and
warn consumers regarding unsafe products);OMB-2012-0003-0074 (public interest organizations,
including environmental, watchdog, and library organizations, emphasizing need for free access
to engage government and public on range of public policy issues); NARA-12-0002 (“A
concerned Citizen,” noting that knowledge of airbag standards allows citizen to be “a more
educated consumer”). Public comments on access issues were filed in an Office of the Federal
Register rulemaking on whether to revise its criteria for revising IBR rules; comments also were
filed in a 2012 Office of Management Budget proceeding on whether to revise Circular A-119.
As of October 2015, Circular A-119 remains unrevised.
32
293 F.3d at 799.

8

should provide regulated parties ‘fair warning of the conduct [a regulation] prohibits or
requires,’” and that due process thus bars the imposition of sanctions upon someone who
could not have received notice of his or her obligations.33
The current use by agencies of incorporated private material without meaningful
public access is constitutionally suspect for a second reason as well. The public cannot
discuss or criticize the government’s decisions if the substance of those decisions is not
available. As the Supreme Court noted in refusing to uphold a statute that would close
criminal trials, “‘a major purpose of [the First] Amendment was to protect the free
discussion of governmental affairs.’ [This] serves to ensure that the individual citizen
can effectively participate in and contribute to our republican system of selfgovernment.’”34 The potential significant charges to read IBR standards raises heightened
constitutional concerns, because the thousands of IBR standards are wide-ranging in
subject, affecting numerous industries, and quasi-legislative in character, with broad and
prospective effect. An assurance of free access only in a Washington, D.C. reading room
is insufficient. The obstacles to access that must be overcome -- the charges and travel
impediments -- effectively deny the public’s right to know and discuss government
actions. Legislative history accompanying the Freedom of Information Act draws the
same link: “‘The right to speak and the right to print, without the right to know, are
pretty empty.’” See H. Rept. No. 1497, 89th Cong., 2d Session 2 (1966) (quoting Dr.
Harold Cross). Significant access charges for regulatory standards are a real obstacle to
knowing their content, and indeed, the Supreme Court has invalidated much smaller
charges as inconsistent with similar core principles of democratic government, such as
the right to vote.35

33

Christopher v. SmithKline Beecham, 132 S. Ct. 2156, 2167-68 (2012) (alteration in
original) (quoting Gates & Fox Co. v. Occupational Safety & Health Review Comm’n, 790 F.2d
154, 156 (D.C. Cir. 1986)(Scalia, J).
34
Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 604 (US
1982) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)); see also Press Enterprise v.
Superior Court, 478 U.S. 1 (1986) (refusing to approve closure of preliminary hearing). Cf. In re
Gitto Global Corp., 422 F.3d 1 (1st Cir. 2005) (“Only the most compelling reasons can justify
non-disclosure of judicial records.”); Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012) (“[A]
court cannot rubber-stamp an access restriction simply because the government says it is
necessary. By reporting about the government, the media are ‘surrogates for the public.’”)
(requiring consideration of public right of access to view Bureau of Land Management horse
roundups).
35
Cf. Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 666-68 (1966) (invalidating state
$1.50 poll tax as effective denial of right to vote). OFR’s approval of IBR rules under this system
of private fees may also raise equal protection concerns, given the central importance, in a
democracy, of public access to the law’s text. In other settings, the courts have relied on equal
protection grounds to invalidate comparable fees imposed upon participation in government.
Harper v. Virginia Bd. Of Elections, supra; Lubin v. Panish, 415 U.S. 710, 717–18 (1974)
(striking down $701 filing fee requirement for California election, given “our tradition . . . of
hospitality toward all candidates without regard to their economic status.”). For many rules,
moreover, budget constraints may be connected with substantive interests; access constraints will
distinctively, systematically disadvantage those interests. For example, consumers will likely

9

3. IBR rules must be broadly available; assuring meaningful free
access only to regulated entities is insufficient
The need for public notice of the contents of federal regulations goes well beyond
the regulated entities tasked with complying with them. Congress enacts regulatory
statutes specifically to guard wide swaths of the public, and the public accordingly has a
specific interest in the content of rules. Consumers of food and toys, parents who wish to
purchase infant carriers, strollers, walkers, or infant bath seats, those who rely on ocean
fishing for their livelihood, or neighbors of a pipeline or propane tank – all of these
individuals are obviously affected by these standards, and should be entitled to notice of
them. For one last example, the Department of Transportation Pipeline and Hazardous
Materials Safety Administration requires natural gas pipeline operators to institute
“public awareness programs” to provide public information and public communications
regarding spills according to an IBR standard of the American Petroleum Institute. 49
C.F.R. § 192.616 (incorporating API Standard 1162). Community members who reside
near natural gas pipelines at risk from a spill are obviously affected by the scope of public
communication requirements. Standards such as these must be meaningfully available
both to pipeline operators and to the community. The content of these standards can
affect individual choices of which toys or infant carriers to buy, where to live, and
whether to file public comments with the regulating agency or write one’s member of
Congress. In short, regulatory beneficiaries have a cognizable stake in these standards,
and the content of the standards can affect their conduct. They therefore need notice of
the text as well; meaningful public access without cost has to be understood as essential.
4.

The public must be able to locate the law.

Public access principles require not only the provision of meaningful free access
to the text of the law, but that the law be reasonably easy to locate. IBR rules are
referenced in the Code of Federal Regulations, but the text of the rules is often very hard
to find. IBR rules are distributed across a wide variety of differently-organized websites,
and neither the online CFR nor Federal Register typically contains any sort of specific
link to the IBR rule’s text. The current distribution of IBR rules in numerous locations
makes each obscure, raising the same sorts of concerns that prompted the passage of the
Federal Register Act.36 Further, although agencies are required to “summarize” in the
preamble to a final rule “the material it incorporates by reference,”37 that summary does
not include the full text, and in any event, preambles are published neither in the Code of
Federal Regulations nor on agency websites containing regulations. The ABA

have smaller budgets than manufacturers; neighbors to a pipeline will likely have smaller budgets
than the pipeline operator.
36

Erwin Griswold, Government in Ignorance of the Law—A Plea for Better
Publication of Executive Legislation, 48 Harv. L. Rev. 198, 204, 205, 294 (1934)
(distribution of federal rules among “pamphlets” or upon a “single sheet of paper”
amounted to “chaos” and an “intolerable” situation). See Federal Register Act of 1935,
74 Pub. L. 220, 49 Stat. 500-503 (H.R. 6323) July 26, 1935.
37

1 CFR 51.5(a)(2); 1 CFR 51.5(b)(3) (2015).

10

accordingly should resolve not only that meaningful levels of free access be provided to
IBR rules, but that such access enable the public to readily find the text of those rules.
5.
Current law as implemented has failed to ensure sufficient
public access to the law
One might think that these interests would already be protected under the
Freedom of Information Act’s Section 552, which requires, as a condition of Office of
Federal Register approval of incorporation by reference, that incorporated material be
“reasonably available” to the “class of persons affected thereby.” 5 U.S.C. 552(a)(1).
Indeed, the legislative history accompanying 5 U.S.C. § 552’s incorporation by reference
provisions made clear its concern with widespread public access, not simply that the IBR
material would not be formally secret: “Any member of the public must be able to
familiarize himself with the enumerated items . . . by the use of the Federal Register, or
the statutory standards mentioned above will not have been met.” S. Rep. No. 1219, 88th
Cong., 2d Sess. 5 (1964) (emphasis added).
Arguments could be made that the Freedom of Information Act’s “reasonably
available” language, particularly in this age of information, already requires meaningful
levels of free access to all incorporated standards not only to regulated entities, but to
regulatory beneficiaries and the public at large. Implementation, however, has fallen far
short of this understanding. In November 2013, the Office of the Federal Register began
a rulemaking on its “incorporation by reference” approval procedures in response to a
2012 rulemaking petition led by Columbia Law School Professor Peter L. Strauss and
joined by numerous law professors. The petition had asked OFR to approve IBR rules
only if free read-only access to the text were provided to the public.38 Despite embarking
on a rulemaking, OFR ultimately declined to significantly revise its approach.39 The
Office of Federal Register has continued to approve the incorporation by reference of
standards that remain difficult to locate and expensive to read.
Accordingly, Congressional action to clarify the requirements of the Freedom of
Information Act and the Administrative Procedure Act is now critical.
6.
Other concerns do not justify sacrificing the bedrock principle
of ensuring meaningful public access to the law
SDOs typically favor and sometimes even seek having their privately drafted
standards adopted as the law of the land, and agencies undoubtedly find it useful to draw
upon this stock of standards. But SDOs also have raised concerns that agreeing to
38

See Office of the Federal Register, Incorporation by Reference (Partial Grant of Petition,
Notice of Proposed Rulemaking), 78 Fed. Reg. 60,784 (Oct. 2, 2013).
39
Rather than requiring any greater public access to the text of incorporated standards, OFR
essentially reaffirmed the status quo, adding only a requirement that the rulemaking agency
seeking approval of an incorporation by reference explain “the ways that the materials it
incorporates by reference are reasonably available to interested parties” and “summarize” the
incorporated material. See 1 C.F.R. 51.5(b)(2), (3).

11

meaningful free public access will result in undercompensation for the cost of preparing
these standards even if SDOs can still sell books of standards to the public.
These standards surely can be valuable, and SDOs consistently claim a copyright
in them. The ABA need not resolve that the considerations that mandate meaningful
public availability of incorporated standards necessarily require invalidation of the SDOs’
copyrights in those standards. The doctrine governing whether copyright persists in text
that is first developed by private-sector entities and subsequently adopted into law is
complex and fact-specific, and accordingly is beyond the scope of the Resolution.40
Moreover, legislation to implement this resolution could also address the issue, such as
by clarifying the continuing validity of copyrights in IBR materials made publicly
available as recommended here or by addressing compensation an agency could offer an
SDO for the use of its privately drafted standards.41 Some SDOs affirmatively seek
incorporation by reference of their standards; others receive financial contributions from
agencies specifically to finish a particular standard that the agency can then incorporate;
some may benefit because there is a larger market for either their current or superseded
standards. Meanwhile some SDOs may object to incorporation of all or nearly all of a
standard, particularly if incorporation significantly reduces their ability to sell standards.
However, the potential need in some cases to compensate the drafters of privately drafted
standards should not defeat the obligation of government agencies to make legally
binding regulations available to the public.
Providing some level of meaningful free public access to these standards, such as
through online access or in government depository libraries, does seem unlikely to impair
the future development of these standards or the ability of agencies to incorporate them.
As noted, some SDOs have recently set up free online reading rooms for their standards
that have been incorporated by reference. These actions blunt any concern that the supply
of voluntary consensus standards on which agencies can draw will be significantly
impacted if some level of free public access to the text is required. In addition, there may
be other solutions to this concern, whether through agency negotiation with SDOs or
40

See Veeck v. Southern Building Code Cong. Int’l, Inc., 293 F.3d 791 (5th Cir. en banc
2002), cert. denied, 537 U.S. 1043 (2002); Practice Management Info. Corp. v. American
Medical Ass’n, 121 F.3d 516 (9th Cir. 1997), cert. denied, 522 U.S. 933 (1997); CCC Information
Svc v. MacLean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994), cert. denied, 516 U.S.
817 (1995).
41
Though the law in this area is far from clear, an agency that republishes the text of a
copyright-protected standard, over the drafting organization’s objection and with harm to the
standard’s commercial value, could, under some circumstances, lose a “fair use” claim and
instead face copyright infringement liability or even liability for taking property without just
compensation. 28 U.S.C. 1498(b) (2006); see generally Office of Legal Counsel, U.S.
Department of Justice, Whether and Under What Circumstances Government Reproduction of
Copyrighted Materials is a Noninfringing “Fair Use” Under Section 107 of the Copyright Act of
1976, 1999 WL 3390240 (1999), at * 3-4 (“The case law provides very little guidance, [but] there
is no basis for concluding that the photocopying . . . by the federal government automatically . . .
constitutes a fair use.”); id. at *11 (concluding that although government photocopying can be
“nonfringing,” there is no ‘per se’ rule protecting government reproduction of copyrighted
material).

12

payments to them. Agencies already can and do contribute funds to the SDO standards
development process, and executive policy encourages agency staff participation in the
SDO process.42 On the other hand, it is abundantly clear that requiring individuals to pay
a significant fee, or to travel to Washington, D.C., to see the text of the binding law,
substantially burdens public access.
The Resolution does not suggest any specific resolution of these concerns.
Instead, the ABA should simply resolve that Congress enact legislation that at its core
bars the outcome that requires a reader to pay significant fees in order to read the binding
law of the land.
B.
To effectuate the statutory right to participate in rulemaking, the
Administrative Procedure Act should be clarified to ensure that the public
receives meaningful access to the substance of a proposed IBR rule.
As well-established elements of the rulemaking process require, an agency’s
notice of proposed rule must be published in the Federal Register with the detail needed
to facilitate a meaningful opportunity to comment.43 These procedural requirements,
which are fundamental to ensuring the continued validity and legitimacy of agency
rulemaking, require that “interested persons” must be able to participate in rulemaking by
submitting “data, views, or arguments” -- public comments--to the agency.44 An
“interested person” cannot meaningfully exercise his or her right to comment without
access to the substance of the standard on which comment is to be filed.45 Requiring an
“interested person” to pay a fee to learn the content of a proposed rule is a significant
obstacle impeding that person’s right to comment under Section 553(c).

42

Office of Mgmt. & Budget, Circular No. A-119 Revised: Federal Participation in the
Development and Use of Voluntary Consensus Standards and in Conformity Assessment
Activities para. 1 (1998), available at http://www.whitehouse.gov/omb/circulars_a119.
Both the NTTAA and OMB Circular A-119 affirmatively encourage agency staff
participation in the SDO processes that develop standards, see Pub. L. 104-113, sec. 12(d)(2)
(Mar. 7, 1996), and Circular A-119 also contemplates financial contributions ot the SDO process.
While this may be sensible, in the absence of public access to SDO materials, it can have two
problematic consequences. First, it leaves understanding of supporting science and rationales in
private hands, thus evading the APA's public notice-and-comment rulemaking process not only
by concealing what is being proposed, but also by hiding the support for it. Second, it creates the
appearance, and potentially the reality, of agency staff promoting a regulatory agenda in an
effectively ex parte context.
43
5 U.S.C. 553(b)(3); Long Island Care at Home v. Coke 551 U.S. 158, 174 (2007) (“The
object [of 553(b)], in short, is one of fair notice.”).
44
5 U.S.C. 553(c).
45
Cf. Portland Cement v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417
U.S. 921 (1974); United States v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir. 1977)
(requiring agencies to disclose data to effectuate meaningful right to public comment).

13

III. CONCLUSION
In short, the ABA should resolve—simply—three propositions. First, the ABA
should resolve that the Freedom of Information Act be clarified to require meaningful
levels of free public access to the text of all binding law. That meaningful free public
access could be provided online, for example, or in depository libraries. To ensure that
the public can readily locate IBR standards, the access ought to be in a centralized
location. If not the government depository library system or live online links in the Code
of Federal Regulations, IBR standards at least should be available through links in a
single federally-maintained website. To the extent any disruption would be triggered by
this Resolution—perhaps an agency might have to negotiate some level of public access
as a condition of incorporating a particular standard by reference—the impact is worth
bearing in order to bring FOIA’s standard of “reasonabl[e] availabil[ity]” into the
Information Age and to effectuate the bedrock principle that the law, in a democracy,
must be meaningfully available to the public.
And second, no standard should become part of binding federal regulatory law
without the public being assured of the full opportunity to participate normally afforded
by section 553 of the Administrative Procedure Act. Therefore, the ABA should resolve
that section 553 be clarified to require meaningful free public availability, during the
public comment period, of a proposed IBR standard’s text.46
Finally, the ABA should resolve that, in order to effectuate these critical
principles, Congress should ensure that private organizations will, where appropriate,
have access to compensation for financial losses attributable to making their standards
publicly available.

Respectfully submitted,

Jeff Rosen, Chair
Section of Administrative Law and Regulatory Practice

46

Although 5 U.S.C. 553(b)(3) formally authorizes an agency merely to give notice of a
“description of subjects and issues involved,” as a practical matter agency notices of proposed
rule generally contain text the agency is proposing to promulgate. (Advance notices of proposed
rulemaking are more frequently phrased in general terms.) The ABA accordingly should resolve
that the text of proposed IBR rules also be made publicly available to make meaningful the right
to comment.

14

GENERAL INFORMATION FORM
Submitting Entity: Section of Administrative Law and Regulatory Practice
Submitted By: Jeff Rosen, Section Chair

1.

Summary of Resolution(s).
To effectuate the bedrock principle of public access to the law, the resolution urges
Congress to strengthen the Freedom of Information Act and Administrative Procedure
Act to ensure meaningful free public access to all federal rules.

2.

Approval by Submitting Entity.
The Council of the Section of Administrative Law and Regulatory Practice voted to
approve the resolution on November 10, 2015.

3.

Has this or a similar resolution been submitted to the House or Board previously?
No.

4.

What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
None are directly relevant.

5.

If this is a late report, what urgency exists which requires action at this meeting of
the House?
N/A

6.

Status of Legislation. (If applicable)
N/A

7.

Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
Policy could be implemented by legislative action.

8.

Cost to the Association. (Both direct and indirect costs)
None.

15

9.

Disclosure of Interest. (If applicable)
N/A

10. Referrals.
Business Law Section
Civil Rights and Social Justice Section
Government and Public Sectors Lawyers Division
Intellectual Property Law Section
Science & Technology Law Section
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Professor Nina A. Mendelson
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109
[phone] (o)
[e-mail]

12. Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail
address.)
H. Russell Frisby, Jr.
Stinson Leonard Street
1775 Pennsylvania Ave., NW
Suite 800
Washington, D.C. 20006
[phone]
[phone]
[e-mail]
Professor Ronald M. Levin
Washington University School of Law
Campus Box 1120
St. Louis, MO 63130
[phone]
[phone] (cell)
[e-mail]

16

EXECUTIVE SUMMARY

1.

Summary of the Resolution

To effectuate the bedrock principle of meaningful public access to the law, the
resolution urges Congress to strengthen public availability to the text of all federal
regulations both when agencies propose them and after promulgation as final rules.
2.

Summary of the Issue that the Resolution Addresses

Federal agencies currently “incorporate by reference” thousands of outside
standards into binding federal regulations. Free public access to the text is reliably
provided only in the Office of the Federal Register’s reading room in Washington, D.C.
Otherwise a reader may be required to pay substantial access fees set by drafting
organizations, significantly obstructing public access, particularly by individuals and
small businesses. The right to comment on an agency’s proposed “incorporation by
reference” of such standards into federal regulations is also impeded by the lack of public
access to the text.
3.

Please Explain How the Proposed Policy Position will address the issue

The resolution urges Congress to amend the Freedom of Information Act to
ensure meaningful levels of free public availability to all federal regulations, including
text that is “incorporated by reference.” Such public access could be afforded through
centralized online access, for example, or in government depository libraries. The
resolution also urges Congress to amend the Administrative Procedure Act’s rulemaking
provisions to require meaningful free public availability of such text during the public
comment period.
As a safeguard against the (probably remote) possibility that the prospect of free
public access might induce a drafting organization to decline to make its standard
available for incorporation, the resolution also recommends that Congress should ensure
that such organizations have access to compensation where appropriate.

4.

Summary of Minority Views
None identified.

17

EXHIBIT 106

Public  Policy  &  Corporate  
Outreach
Virtual  Officers’  Training  Week
September  2015
Presenter:  Sarah  Shoemaker

ASTM  International
About  ASTM  International
− Non-­governmental,  not-­for-­profit  organization
− Develops  voluntary,  consensus  standards
− Provides  certification  programs
− Does  not  provide  accreditation  services

ASTM’s  objectives
− Promote  public  health  and  safety,  and  the  overall  quality  of  life
− Contribute  to  the  reliability  of  materials,  products,  systems  and  services  
− Facilitate  national,  regional,  and  international  commerce

Virtual  Officers’   Training  Week
September  21-­24,  2015

2

Role  of  Standards
Standards  in  the  Public  and  Private  Sector
− Impact  global  trade,  innovation  and  competition
− Guide  product  design,  development,  market  access
− Used  by  companies,  research  labs,  government  agencies

ASTM  International   Standards
− Voluntary  consensus  standards
− Regularly  reviewed  
− Meet  World  Trade  Organization  (WTO)  principles  for  international  standards

Virtual  Officers’   Training  Week
September  21-­24,  2015

3

Public  Policy

4

ASTM  in  Washington,  DC
Government  Affairs
− Congress
− Federal  government  agencies

Stakeholder  Outreach
− Companies
− Embassy  officials  based  in  Washington
− Industry  associations
− International  Non  Governmental  Organizations  (NGOs)

Virtual  Officers’   Training  Week
September  21-­24,  2015

5

U.S.  Standards  System
Voluntary  and  led  by  the  private  sector  
Requires  cooperation   among  stakeholders
− Standards  organizations
− Industry,  consumers,  and  users
− Government  representatives
− Academia

Meets  stakeholders’   needs
− Protect  safety,  health,  and  environment
− Improve  industry  competitiveness
− Facilitate  global  trade  and  market  access

Virtual  Officers’   Training  Week
September  21-­24,  2015

6

Support  and  Mandate  for  Government  
Participation
P.L. 104-113 National Technology Transfer
and Advancement Act of 1995 (NTTAA)
−“…all  Federal  agencies  and  departments  shall  use  
technical  standards  that  are  developed  or  adopted  by  
voluntary  consensus  standards  bodies,  ….and shall,  
…participate  with  such  bodies  in  the  development  of  
technical  standards.”

Virtual  Officers’   Training  Week
September  21-­24,  2015

7

U.S.  Legal  and  Policy  Framework
National  Technology   Transfer  and  Advancement  Act  of  1995  
(NTTAA)
− Requires  federal  government  agencies  to  use  standards  developed  by  voluntary  
consensus  standards  organization  when  possible
− Encourages  federal  government  agencies  to  participate  in  standards  
development  organizations

OMB  Circular  No.  A-­119
− Reinforces  goals  of  National  Technology  Transfer  and  Advancement  Act
− Discourages  federal  agencies  from  using  government-­unique  standards

Virtual  Officers’   Training  Week
8

September  21-­24,  2015

U.S.  Government  Use  of  
Voluntary  Consensus  Standards
Procurement  and  Contracts  with  the  Federal  Government
− Standards  are  furnished  to  ensure  that  materials  and  services  are  obtained  in  an  
effective  manner  and  in  compliance  with  the  provisions  of  applicable  Federal  statutes  
and  executive  orders  

Regulation   that  incorporates  standard   by  reference
− An  agency  may  adopt  a  voluntary  standard  (without  changes)  by  incorporating  the  
standard  in  a  regulation  by  listing  (or  referencing)  the  standard  by  title.
− This  approach  eliminates  the  cost  to  the  agency  of  creating  a  new  standard

Regulation   based  on  existing   standard
− An  agency  reviews  an  existing  standard  and  makes  changes  to  match  its  goal  or  
need.
− Agency  conducts  rulemaking  process  to  solicit  public  opinion  and  stakeholder  input  

Virtual  Officers’   Training  Week
September  21-­24,  2015

9

Federal  Agencies  &  ASTM  Standards
U.S.  Code  of  Federal  Regulations   (CFR)
− 6,500  voluntary  consensus  standards  
incorporated  by  reference  in  federal  law
− About  3,000  ASTM  standards  listed  in  CFR  for  
regulations  and  procurement

U.S.  Federal  Register
− Public  notification  of  standards  adoptions
− Instructions  for  public  comments

Virtual  Officers’   Training  Week
September  21-­24,  2015

10

Top  10  Regulatory  SDOs  in  US  
Standards Developing Organization

Acronym

American Society for Testing and Materials

Number
ASTM

2566

EPA

1471

American Public Health Association

APHA

816

American Society of Mechanical Engineers

ASME

768

American National Standards Institute

ANSI

677

National Fire Protection Association

NFPA

589

International Maritime Organization

IMO

579

Society of Automotive Engineers

SAE

437

U.S. Environmental Protection Agency

Reprographic Technologies

351

National Highway Traffic Safety Administration, U.S.
Department of Transportation

DOT/NHTSA

Virtual  Officers’   Training  Week
September  21-­24,  2015

344

Congress  &  ASTM  Standards  in  Law

Virtual  Officers’   Training  Week
September  21-­24,  2015

12

Product  Safety  through  Laws  and  
Regulations
Statutes  and  Law
− Consumer  Product  Safety  Act  (CPSA)
− Consumer  Product  Safety  
Improvement  Act  (CPSIA)
− Virginia  Graeme  Baker  Pool  and  Spa  
Safety  Act  

Regulations  and  Mandatory  
Standards
− 15  CFR  1150    Marking  of  Toys,  Look-­
Alike  and  Imitation  Firearms

CFR
Code  of  Federal  
Regulations

− 16  CFR  1500    Hazardous  Substances  
Act  Regulations

Virtual  Officers’   Training  Week
September  21-­24,  2015

13

ASTM  Assists  in  Transparency  in  
Rulemaking

ASTM  standards  
IBR  are  provided  in  
a  read  only  format  
to  the  general  public  
in  the  reading  room.

Virtual  Officers’   Training  Week
September  21-­24,  2015

14

U.S.  Government  Membership  in  ASTM
Agency Name

Members

Department of Agriculture

40

Department of Commerce (incl. NIST)

165

Department of Energy

178

Environmental Protection Agency

79

Federal Aviation Administration

55

3
11

NASA

37

Nuclear Regulatory Commission

7

Occupational Safety & Health
Administration

5

Department of Transportation

257

Department of Interior

34

Department of Veterans Affairs

1

44

Department of Defense

Members

Department of Justice
Consumer Product Safety Commission

Agency Name

Department of Health and Human
Services (incl. FDA)
Housing and Urban Development

120
3

Virtual  Officers’   Training  Week
September  21-­24,  2015

15

ASTM  Initiatives  with  U.S.  Government
Ensure  reference  to  current  standards
− Regular  review  of  the  Code  of  Federal  Regulations and  Congressional  
Record
− Coordinate  technical  committee  communications  to  policymakers

Understand   procurement  and  regulatory  standards  needs
− Review  of  Regulatory  Plan  and  Agenda
− Encourage  government  liaison  with  and  participation  in committee  
activities

Virtual  Officers’   Training  Week
September  21-­24,  2015

16

Proven  Partnership
Chairman  Kaye's  Congressional  Testimony

− Sworn  in  as  the  10th  Chairman  of  the  U.S.  Consumer  Product  Safety  Commission  (CPSC)  
on  July  30,  2014.  President  Barack  Obama  nominated  Mr.  Kaye  on  March  31,  2014,  and  he  
was  confirmed  by  the  U.S.  Senate  on  July  28,  2014,  to  a  term  that  expires  in  October  2020
Elliot  F.  Kaye  
Virtual  Officers’   Training  Week
September  21-­24,  2015

17

II.    Corporate  Outreach

18

ASTM  Engages  Decision-­Makers  
Raise  awareness  of  standards  and  ASTM  
-­ Standards  facilitate  trade  and  boost  GDP  
-­ No  WTO  list  of  international  bodies

Identify   opportunities   for  collaboration   on  issues  of  mutual  
interest
-­ Reduce  internal  company  specifications

Seek  industry  feedback  on  activities  and  challenges
-­ ASTM  supports  industry  needs  to  choose  the  best  standard,  regardless  of  the  
source

Ensure  ASTM  is  meeting  stakeholder  needs
-­Satisfy  regulations  and  laws  

-­ Facilitate  global  trade

Virtual  Officers’   Training  Week
September  21-­24,  2015

19

ASTM  Standards  Impact  the  Global  Economy
ASTM  standards  meet  World  Trade  Organization  (WTO)  criteria  
for  “international   standards”
− No  WTO  list  of  international  bodies
− WTO  recognizes  multiple  approaches  to  international  standardization

ASTM  makes  it  easy  to  participate   in  international   standards  
development
− Technology  drives  efficiency

Virtual  Officers’   Training  Week
20

September  21-­24,  2015

ASTM’s  Global  Reach

Virtual  Officers’   Training  Week
September  21-­24,  2015

21

ASTM  complies  with  WTO  principles  for  
international  standards  development
WTO  /  TBT  Principles

ASTM  Principles

Transparency
Transparency
Openness
Openness
Impartiality  and  consensus
Impartiality  and  consensus
Effectiveness  and  relevance Effectiveness  and  relevance
Coherence
Coherence
Consideration   of  developing   Consideration   of  developing  
nations
nations

Virtual  Officers’   Training  Week
September  21-­24,  2015

Moving  Forward
− ASTM  seeks  to  enhance  our  level  of  cooperation  and  work  with  
government  and  standards  officials  and  industry  to:
− Promote  a  global  marketplace  that  is  open,  efficient,  free  of  costly  
duplication,  free  of  technical  barriers,  and  free  of  national  or  regional  
limitations
− Produce  high-­quality  and  market  relevant  standards  that  advance  R&D,  
product  manufacturing,  testing,  quality  assurance,  marketing,  and  trade  
for  both  companies  and  SMEs  
− Advance  the  ability  of  industries  to  choose  the  standards  which  best  
meet  their  needs
− Our  global  approach  to  standards  development  and  use  can  help  the  
world  to  work  better  through  improved  products,  increased  trade,  and  
greater  prosperity  for  the  future.

Virtual  Officers’   Training  Week
September  21-­24,  2015

23

III. Questions  and  Discussion

24

Contact  Information
Anthony  R.  Quinn,  
Director,  International  Trade  and  Public  Policy  
[e-mail],  202  223-­8484

Sarah  Shoemaker,  
Manager,  Government  and  Industry  Affairs
[e-mail],   202-­223-­8399
1850  M  Street,  NW,  Suite  1030
Washington,  DC  20036    USA

Virtual  Officers’   Training  Week
September  21-­24,  2015

25

EXHIBIT 107

EXHIBIT 108

EXHIBIT 109

EXHIBIT 110

EXHIBIT 111

EXHIBIT 112

EXHIBIT 113

EXHIBIT 114
(FILED UNDER SEAL)

EXHIBIT 115

EXHIBIT 116

EXHIBIT 117

EXHIBIT 118

EXHIBIT 119

EXHIBIT 120