“[T]he Roman despot Caligula . . . had laws written in fine print and hung them high up on pillars so that they were not available to nor readable by the Roman citizens affected by such laws.”
— United States v. Kilkenny.
Introduction
In 2022, an estimated 6,200 children in the United States were treated in emergency rooms as a result of fallen or tipped-over home furniture.
Seeking to prevent these dangerous situations, the U.S. Consumer Product Safety Commission (CPSC) promulgated a new regulation that “prescribes safety requirements for clothing storage units . . . to protect children up to 72 months of age from tip-over-related death or injury.”
This regulation specifies that all clothing storage units that meet certain criteria “shall comply” with “ASTM F2057-23, Standard Safety Specification for Clothing Storage Units.”
But the mandatory, legally binding requirements detailed in ASTM F2057-23 that are designed to reduce child injuries are not available in the Code of Federal Regulations (CFR)
or the Federal Register.
Instead, the CPSC regulation merely incorporates by reference ASTM F2057-23,
which is a privately created and copyrighted set of standards drafted by ASTM International, a nongovernment organization that develops safety and regulatory standards.
As such, the CPSC directs individuals and organizations interested in reading the complete ASTM F2057-23 standard to either (1) purchase the publication directly from ASTM International
—which costs ninety-nine dollars
—or (2) travel to view a free library copy at a federal office building near Washington, D.C.
The relative inaccessibility of this binding law creates a substantive barrier that prevents the American people from reading—or even knowing—the contents of these mandatory regulations.
This issue of incorporation by reference (IBR) extends far beyond the subject of furniture tip-overs. Estimates indicate that the CFR today contains over twenty-seven thousand incorporations by reference to standards that are often not fully and freely accessible to the public.
Indeed, both executive and congressional mandates specifically encourage or—in some instances—require government agencies to utilize references to external standards when possible.
Such incorporated references to privately developed standards appear in regulations related to nearly every sector of the economy, “from transportation systems and robotics to the construction of nuclear power plants.”
Furthermore, attempts to standardize an industry by reference to materials not publicly available extend beyond the federal administrative law and regulatory spaces: Legislative bodies on the state and local levels have also deployed IBR when drafting laws, often leaving crucial municipal regulations (such as model building codes) locked behind a paywall.
This Note argues that the most effective solution to increase access to incorporated standards is for Congress to pass a modified version of the Pro Codes Act that includes specific, additional pro-access provisions.
Part I of this Note discusses the background of this “incorporation by reference” practice and further explains the extent to which modern law and regulation rely on it. Part I also details steps that Congress has taken to alter the copyright status of works incorporated by reference and elaborates upon the recently introduced Protecting and Enhancing Public Access to Codes (Pro Codes) Act. Part II explains the problems that IBR creates for Americans and describes why attempts to place all incorporated materials into the public domain are dangerous to our nation’s regulatory practices. It also elaborates on why proposals to solve this problem through judicial, executive, and private means are insufficient, inconsistent, or unlikely. In Part III, this Note concludes by proposing a new piece of federal legislation that builds on the basic principles of the Pro Codes Act while incorporating new provisions that will improve Americans’ capacity to access incorporated standards.