Chairman Verkuil: [0:03] I think the way we would go is to take the amendments that have been proposed in advance and posted so you have notice of them. Of course, the one that I mentioned is Peter Strauss, who is the Senior Fellow. [0:19] Peter can't make a motion, but I know I'm going to recognize someone who can. I believe that's Phil Harter. I think we can even have a seconder now in Cynthia Farina. Phil, would you start us off and then turn to Peter.

Philip J. Harter: [0:38] Sure. My primary reason for moving this is that, at age 70, I want to emphasize I'm not recognized as a seat. I thought that was kind of a hoot. [0:46] Anyway, I think that the introductions were really terrific. My main reason for doing this is I have been involved in the standards process literally for 40 years, not the magic 30 that has been kicking around, when I wrote a memo for the National Bureau of Standards. I've been involved in it ever since.

[1:02] It strikes me that, throughout that period, the administrative law answer has been clear. You need the standards. They need to be free. On the other hand, there is this very practical one, that both of you emphasized, that kills the goose that lays the golden egg.

[1:17] We need some sort of accommodation. One of the things I wanted to do was sponsor Peter's to spark the debate among this group with the very practical and considerable insight to help us resolve and move forward in what I hope is a continuing dialogue because we are not there yet.

Chairman Verkuil: [1:37] You are now free to speak.

Peter Strauss: [1:39] Thank you. This is, in so many ways, a fond recommendation. The best practices that Emily has identified clearly are best practices and ought to be followed and widely encouraged. The place where I stopped as an academic was at, "Wait a minute, the public can be required to pay for this rather than the agencies." I don't have any question that copyrights in some occasions ought to be paid for, but the way to encourage good bargaining, the way to encourage agencies really pushing standard setting organizations for the best possible outcome, is for them to be carrying the payment freight. [2:30] If agencies see that, well, it's somebody else that's paying the bill, they're less likely to do that, so I submitted previously some amendments that looked in that direction. I've then had extensive conversations with Paul and John and other members of the ACUS staff that persuaded me that really the better thing to do was to try to emulate Walter Gellhorn and see if we couldn't find a way of doing this good thing without taking a public position on the issue that the government someplace else has already taken what I might think was the wrong position on, but doesn't matter. I'm not there. I'm here.

[3:13] This recommendation attempts to do that. It attempts to capture--I hope it does capture--all of the positives in the recommendation as put. It's reorganized. It's reorganized for a couple of reasons. First, numbers one through three deal with proposals for rulemaking. As I say, no substantive change here, except to identify, "This is about proposals for rulemaking."

[3:42] The reason for doing that is there is no statutory obligation of reasonable availability at the stage of proposals for rulemaking. But all of the transparency considerations, all of the eGovernment and eRulemaking considerations push strongly in that direction.

[4:02] Maybe there's some mild strengthening, substitution of a couple of words, but mostly what this is does is to bury the question of payment and who pays. That's what I'm intending to do.

[4:16] Then, paragraph four deals with an issue that I think has just been dropped by the recommendation, but I think there's a way around that. The obligation that standards be reasonably available is a statutory obligation for enforcement by the Office of Federal Register.

[4:39] The Office of Federal Register has not revisited its regulations on this subject since '84, since the electronic government backed, since the explosion of the Internet. It's time for them to do so. When they do so, one of the things they'll find is that the principle reason for this statutory provision to keep bulk out of the federal register has disappeared.

[5:10] There's no longer any question about reasonable availability if stuff is on agency Internet websites. It's simply gone. The only thing that's left is the question that I've tried to bury, whether if something's been incorporated by reference, it has to be paid for, and if so, by whom. Other than that, and turning this into a recommendation that it's the Office of Federal Register that ought to reconsider these matters, A, B, and C are directed at the Office of Federal Register .

[5:49] I think no change in the positives that the recommendation endorses. Then, well, do we have to wait for the Office of the Federal Register to change that? No. ACUS ought to go ahead and agencies ought to go ahead and accomplish these good things on their own.

[6:06] I'll say one final thing. There are standards and there's regulations. To some extent, that I hope I've evaded, the recommendation confuses that.

[6:21] Circular A1-19, OMB's circular enforcing the National Technological Transfer Act, is only about standards. It's only about the sorts of things that we might ordinarily think of in guidance terms.

[6:37] If you can produce something meeting the following physical tests, then you will have met the regulation that we have adopted. The OMB document is very clear. It doesn't believe that incorporation by reference is required by the Technological Transfer Act for rules, for binding stuff of a more general character.

[7:08] I try to evade this in a way, particularly because, if you look at what the Administrative Procedure Act has to say about guidance, which this recommendation does not address, and I appreciate that, there is no reasonable availability qualification.

[7:27] The only qualification and the obligation of agencies to put their guidance into their electronic reading rooms is the protection of privacy. There is nothing about reasonable availability. We don't have to decide that. I'll say it again. I'm supportive of, I suppose, 90 percent of this recommendation.

[7:47] I hope the Conference will agree simply to put aside the question of who pays and is payment tolerated.