Chairman Verkuil: [0:02] Let us have some more discussion on the amendment. Cynthia Farina asked to be recognized, and Carl Malamud. Cynthia, why don't you identify yourself please.
Cynthia R. Farina: [0:15] Thank you. I'm Cynthia Farina. I'm a public member. I seconded Peter's proposed amendment. I would like to see this much stronger, and I hope that the conference, in any event, considers this only a first step. [0:32] What I wanted to speak to was the whole issue of how this plays into open government and accessibility of information on the Internet. That's an area I've been working in for a few years, looking at the Bush administration's advances, looking at the Obama administration's advances.[0:51] I've become increasingly convinced that although all parts of the regulatory spectrum benefit from easier access to information, and that's certainly what the Internet can give us, that the principal beneficiaries of this development are small businesses, small state and local governments, NGOs and individuals.
[1:18] To the extent that the Internet can make information easier to get to, easier to understand the meaning of, and easier to understand the significance for that individual or group of the information, then that lowers the cost of participating in rulemaking, and of understanding their regulatory rights and responsibilities.
[1:45] I don't think we can overestimate how much greater those costs are for these small entities and individuals than for large corporations, trade and professional organizations and things like that.
[2:03] As I say, increasingly my expectation is that if the open government movement is successful, it will bring these sectors of the stakeholder community or spectrum into more active and informed participation. There are a lot of reason why that's a good thing from the perspective of the government, from the perspective of those organizations themselves.
[2:31] But any imposition of cost, unless it is graduated, directly undermines what open government can accomplish for us. As I said, I wish this language was stronger. I hope it's the first step for ACUS, because until we address the issue of fees, we really are not just bucking the tide of the information wanting to be free. Actually, we are undermining what we're trying to do with the Open Government Initiative.
Chairman Verkuil: [3:11] Thank you. Carl Malamud, a public member.
Carl Malamud: [3:17] Hi, Carl Malamud. I'm a public member. I want to thank Mr. Cooney and Ms. Bremer. The study is good and it's the first time that this issue really has been looked at. There are some important benefits to incorporation by reference of tapping into the expertise of the private sector. But those are, in a sense, secondary benefits. There are some primary considerations which I think we can't forget about equal protection under the law and due process under the law. Those are not empty words. [3:50] When we charge for access to the law, we're imposing a poll tax on access to justice and access to the law. I've heard often that this is not an issue, that those that need access to the law have access. But I've talked to a lot of small businessmen and government lawyers who have a real problem when they have to pay $60 or $100 simply to read a proposed regulation or an actual regulation.[4:21] I think without the Strauss amendment, we're not going to meet that minimum floor of trying to make access to these regulations available to the public. I guess I would like to remind the conference of Justice Breyer's closing comments when he was here last time. He said that a law that is not public is not a law. I think without the Strauss amendment, this recommendation doesn't meet that minimum threshold.
Chairman Verkuil: [4:48] Thank you, Carl. Jim Tozzi, public member.
James J. Tozzi: [4:58] I am Jim Tozzi. I'm a public member and I'm also a member of the committee that had jurisdiction over this issue. [5:08] My views, I rise in opposition to the gentleman from New York's amendment. My views are somewhat easy to state because the gentleman from New York's amendment moves at one of the most basic items and concerns that our committee had.[5:30] Our committee stated the following, and our recommendation in this provision with the deleted by Professor Strauss's amendment. The point that I'm raising is the following, it's item four. It says, "In deciding whether to incorporate a particular copyrighted material by reference, the cost to the regulated and other interested parties to obtain a copy of the material should be considered."
[6:01] So, the effect of Professor Strauss's amendment is to delete any concern about cost. Now, my concern is somewhat a result of our own work experience. My work experience when I was in the government that there has been a number of five and eventually eight consecutive administrations and asked and required that any rule making activity consider cost, and to alleviate and to remove cost from any of those considerations is countered to the actions taken by eight administrations in rule making.
[6:43] To delete the amendment at this time is even a great problem because the record is clear that the committee recommended cost and then ACUS took it out.
[6:55] Now, I don't pretend to have a monopoly on work experience. Professor Strauss was the general council of a major agency, and here he has experience of different kind.
[7:05] Furthermore, if you look at scholarly articles and you keep score, it's Strauss-144, Tozzi-1.
[laughter]
James J. Tozzi: [7:14] But not withstanding these impeccable credentials of the gentleman from New York, I was moved and strongly recommend that the assembly not adopt the amendment. Thank you.
Chairman Verkuil: [7:28] Let's see. I'm going to call on Amy Bunk, I believe that is back there.
Amy Bunk: [7:35] It is, thank you sir. My name is Amy Bunk. I run the legal unit at the Office of the Federal Register. I would like to specifically address Professor Strauss's recommendation number four. [7:49] To give you a little background on the legal staff at the Office of the Federal Register, there are three of us. We review all request from corporation by reference that are submitted by agencies. We also review questions that the scheduling unit has about documents that are submitted for publication and any other legal issue that comes up.[8:11] I think Mr. Cooney said it best when he was talking about, in his response to the proposed recommendation four, that the Office of the Federal Register is probably not in a good position to evaluate the degree in which public disclosure is needed to achieve agency policy or to subject the effectiveness of the agency program to public scrutiny.
[8:39] In addition to that, if we started tracking NPRMs that contain incorporation by reference requests, I think it would just add a great deal of time to the IBR approval process, several months possibly. I think we do try to set some basic standards for accessibility. We're willing to look at ways to improve that. Unfortunately we don't have the subject matter expertise and I just don't have, probably, the staff to do a lot about it at this point. Thank you.
Chairman Verkuil: [9:25] Thank you. Let's see, Jonathan Rose have it.
Jonathan Rose: [9:29] Jonathan Rose, public member. I support Peter Strauss's amendment even though I can't vote, and a number of the comments made in support of it, and would only add this. [9:43] It seems to me that those private standard making organizations who don't want to release their copyrights when the standards are incorporated by reference, in my view, sort of want to have their cake and eat it.[10:03] They want their standards to control, and by incorporating them by reference, they gain that. It seems to me to them not be willing to have them available at no cost to those who might be affected by them does not, in my view, seem totally consistent.
[10:26] I think they not only benefit by them, by having them adopted, they reduce certain kinds of risk that arise in the standard making process. Standards can be very anti-competitive, and there have been anti-trust litigation over the adoption of standards and the exclusion of certain kinds of materials that don't meet those standards.
[10:51] The railroads learned a long time ago that the best way to avoid these kind of problems is to have an agency do your work for you. They can enforce the standards better than a private organization, and you certainly mitigate the anti-trust problems.
[11:10] I think, therefore, there are numerous benefits to those organizations who want their regulations to be incorporated by reference and, therefore, I think it's not quite appropriate that they resist in letting them be available without charge.
Chairman Verkuil: [11:28] Thank you. OK, we're coming up on 60 minutes. Then we should have a vote. But let me let Peter respond, and then John Cooney have for the committee that...
Peter Strauss: [11:41] Very briefly, much as I admire Jim Tozzi, I think he hasn't given the way in which I attempted to leave resolution of this issue out sufficient credit. Again and again, it talks about reasonable electronic access, reasonably accessible electronic versions. My notion was, is that to the extent costs are, in fact, exported, what those costs are will be part of the determination of what's reasonable. [12:20] If a standard setter is willing to make the standards available on a read-only basis during the comment period for free, that too could be a consideration if it comes at a later point for payment.[12:35] What I'm trying to do is avoid the necessity of saying affirmatively, "It's OK to charge." And finally, there's nothing in here about a responsibility for the Office of Federal Register for NPRMs. All that item four attends to do is to direct the Office of Federal Register to recast its definition of reasonable availability in light of the electronic age, which is has not done and it ought to do.
Chairman Verkuil: [13:12] John, you want to make a final comment, and we'll go for a vote on the amendment.
John Cooney: [13:19] A few very quick points here. We're not here on an advocacy function, we're here as ACUS where our statutory mission is to balance fairness and efficiency. I don't think that we ought to just eliminate the consideration of cost. That's one of the critical factors that's involved here. Its existence can't be denied. It's been a central part of the process, and so I think it's important, the balancing process that we're required to go through, to explicitly lay out what the factors are that we're being accommodated, that are being balanced. [13:55] With respect to Cynthia's comment, I understand where the advocates would like to go, but I don't think ACUS can get people there. What we can do is that we can establish a baseline. The people who are advocating for a greater openness and fairness will be a lot better off tomorrow morning if this recommendation is adopted as proposed, because they can use this as the platform, the baseline on which they're going to make other advocacy efforts.[14:20] If ACUS has identified this problem and brought it to the world's attention that there's an anomaly here, you're going to be a lot better off when...You can put the words in our mouths. You don't have to state them yourselves. You can say that a federal agency has recognized this concern after discussion extensively with the other agencies.
[14:38] Finally, I'd like to refer to what Emily said. We're really just at the beginning of this process. We don't know if there are real problems here because the agencies are just in the initial stages of finding out that, collectively, they have a problem in learning from each other what techniques have been used so far.
[14:53] I don't know if there will be an impasse. I can't predict if there are technological solutions that may provide a silver bullet for this problem or that may get us well down the line. I think that it's advisable to let the process play out, to see if we can push the agencies to try to become aggressive. Already the standard setting bodies are beginning to respond to this. I am told that at the most recent anti-colloquium, a member of one of the large, standard-setting bodies stood up and started discussing how his group used the read-only process at the NPRM stage.
[15:28] I think it's very early, and I think that ACUSes already can declare success on this because we've pushed the process forward and we haven't even had a vote on the first amendment yet.
[15:37] So, for those reasons I recommend that the recommendation be passed as proposed. I think we're on to something solid here and something that we're going to look back later on and say...Carl and his people were very good of calling this to people's attention. ACUS grabbed attention thanks to the chairman, and developed it further. And we're at the first stage because we're going to shine a light on an issue that's important and anomalous.
Chairman Verkuil: [16:04] Thank you, thank all of you. So, let us vote now on the Strauss amendment presented by Harder. And you know what it is. All in favor of the amendment say, "Aye." All opposed say, "Nay." [16:23] The "nays" have it. Thank you very much.[16:27] Now we are back to the motion on the proposal, the recommendation as proposed. Are there any further comments before we vote on the overall proposition? Yes?
[16:47] Steve, wait one sec.
Stephen Burns: [16:49] Sorry. Steve Burns, government member. I'd just like a brief explanation for recommendation 11, what you're trying to get at there in terms of legislation to allow this procedure, I guess, for petition for rulemaking, which I know my agency already uses and, in fact, wouldn't wait for changes, to incorporate by reference changes to a stand. [17:17] Are you trying to fix something that may be a peculiarity for some agencies, or a difficulty for some agencies?
Emily Bremer: [17:23] I can speak to that a little bit. The answer is basically yes. I found that there are some agencies that for a variety of reasons have a harder time updating their regulations that incorporate by reference. It's a particular problem for the hybrid agencies, such as OSHA, who are subject to procedural requirements that exceed those that are in 553. So, they can't use direct final rule making. [17:49] Even for agencies that can use direct final rule making, it's really only useful if it's an absolutely uncontroversial change, because a single adverse comment derails you and sends you back to the beginning of the NPRM stage.[18:04] So, where all that's happening is we're moving from the 2001 version to the 2008 version, and it reflects superior technical information, but doesn't change the regulatory purpose of incorporation. We think that a streamlined process would be of benefit. So, that's why.
Chairman Verkuil: [18:30] OK. One more.
Philip J. Harter: [18:37] I guess the question I have is whether this procedure 11 is limited to the technical standards as defined by ONB, or somewhere else you also have is some degree of balance that it's non-controversial. So, if these are regulatory standards, I'm troubled by C2. If they're technical standards, I probably am not. So, I would suggest that they don't have a magic language on it. I think that needs clarifying.
Emily Bremer: [19:05] We're pretty much in all cases talking about technical standards. The distinction that Professor Strauss draws is accurate and I understand that. And in fact, we have a recommendation in the drafting section that addresses this. [19:19] The second sentence of recommendation five says that, "Incorporated material may provide detail, but a regulation should by itself make the basic concept of the rule understandable without the need for the reader to refer to the incorporated material."[19:31] And this is explicitly tied to the part of the ONB Circular that Professor Strauss identified. When you're incorporating by reference, it is to fill in technical detail. It is not to adopt a regulatory standard by reference. The regulatory standard needs to be in the regulation and the incorporated material needs to only provide technical detail.
Chairman Verkuil: [19:54] OK. Shall we vote now on the recommendation as presented by the committee and the council? All in favor, say, "Aye." [20:05] All is nay.[silence]
Chairman Verkuil: [20:09] Ayes have it. So now you've done so well, you can have a coffee break. [20:17] And we'll come back at...and let's try and get back here in 15 minutes. Back in business. Ed, Good job.