Comment of Public.Resource.Org and Co-Signatories, Notice of Proposed Rulemaking, Docket Number: ATBCB-2015-0002

1. Introduction

Public.Resource.Org (“Public Resource”) and the undersigned affected parties submit this comment to object to one aspect of the proposed Architectural and Transportation Barriers Compliance Board (“the Access Board”) regulation:[1] It proposes to incorporate by reference 10 standards, six of which are not reasonably available to people affected by the rule, as required by law.

It is clear that a revision of these regulations is long overdue, given the need, as the Notice of Proposed Rulemaking (NPRM) states, to “ensure that accessibility for people with disabilities keeps pace with advances in electronic and information technology.” What is not clear is why the Board believes that it is appropriate or legal to issue a proposed rule, or a final rule, that includes major components that many people—including many interested parties—will not be able to access because of the fees required to read them and because of the inaccessibility of the documents once they are finally obtained.

Accordingly, Public Resource and the undersigned affected parties are not commenting on the substantive merits of the proposed rule. Instead, we ask the Access Board to recognize that it has acted illegally and arbitrarily at this NPRM stage in not making all of these 10 standards—which are integral parts of the rule—available in unrestricted fashion to us and other members of the public. This unwarranted action by the Access Board places an unreasonable burden on members of the public who wish to review the entire rule in order to fully understand it and to make appropriate comments.

A final rule that incorporated the standards without making them freely available would be equally invalid. The new regulation would make these standards part of the law, yet the Board proposes to exclude the texts of these standards from the text of the regulation. Nor does the Board propose to link the online version of the regulation to websites offering free and unrestricted access to the standards. Instead, the Board apparently expects people to purchase standards from various private organizations which will prohibit citizens from repeating the text of the law.

In sum, the Board has invited the public to comment on a law, and proposed that citizens be compelled to obey a law, that many affected parties cannot reasonably afford to access and which will not be accessible under the Board’s own rules.

This failure to make all of the 10 standards, proposed to be part of the rule, reasonably available denies people basic access to their own laws, the laws they are both bound to obey and dependent upon for protection from serious dangers. In so doing, the proposed rule violates the Freedom of Information Act, the Due Process Clause of the Constitution, and the fundamental principle of responsive governments worldwide for millennia—that people are entitled to read and speak the laws that govern them, with no restrictions.

Because it is illegal and arbitrary to publish this proposed rule without making incorporated standards freely available, the Board should re-publish the proposed rule with the incorporated standards available online for free without restrictions on use and re-open the comment period or it should simply incorporate the actual text of the standards into the regulation. As to any final rule, the Board may not lawfully incorporate these standards into its regulation until and unless they are written directly into the rule, or else permanently available to the public on a website without charge and without any restriction whatsoever on use.

2. The Proposed Incorporation by Reference

In the NPRM, the Board proposes to update the existing Electronic and Information Technology Accessibility Standards under Section 508 of the Rehabilitation Act of 1973 and the Telecommunications Act Accessibility Guidelines under Section 255 of the Communications Act of 1934. The Board states “one of the primary purposes of the proposed rule is to replace the current product-based approach with requirements based on functionality, and, thereby, ensure that accessibility for people with disabilities keeps pace with advances in electronic and information technology.”

Yet the Board then undercuts its aim of improving access by proposing that some of the content of the proposed rule in fact be shielded from the public and instead hidden behind paywalls and frozen in forms that actually reduce accessibility.

As the NPRM notes, the Office of the Federal Register, by a final rule effective January 6, 2015, imposes new specific requirements on agencies in issuing regulations that include materials incorporated by reference. The OFR rule requires agencies to:

Discuss, in the preamble of the proposed rule, the ways that the materials it proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties; and summarize, in the preamble of the proposed rule, the material it proposes to incorporate by reference.

1 CFR § 51.5(a).

The OFR rule imposes similar requirements with respect to the final rule. 1 CFR § 51.5(b).

The Board purports to address these new requirements in its discussion of the availability of each standard, but the reality is that many of the standards are expensive and available only on a highly restricted basis. The 10 standards that form an integral part of the proposed rule are:

1. ANSI/HFES 200.2 (2008): Human Factors Engineering of Software User Interfaces—Part 2: Accessibility. This standard provides design specifications for human-system software interfaces to increase accessibility for persons with disabilities. It covers the design of accessible software for people with a wide range of physical, sensory and cognitive abilities, including those with temporary disabilities and older adults. Copies of this standard may be obtained from Human Factors and Ergonomics Society (HFES), and are available for purchase on the HFES site (http://www.hfes.org) for $200[2] and users are required to accept strict license terms as a condition of purchase.[3]
2. ANSI/IEEE C63.19-2011: American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids. This standard provides a uniform method of measurement for compatibility between hearing aids and wireless communications devices. Copies of this standard may be obtained from the Institute of Electrical and Electronics Engineers (IEEE) and their resellers for $151,[4] but only in a PDF format which has accessibility disabled and after accepting stringent terms of use.[5]
3. A/53 Digital Television Standard, Part 5: 2010 AC-3 Audio System Characteristics (2010). The standard for digital television provides the system characteristics for advanced television systems. The document and its normative parts provide detailed specification of system parameters. Part 5 provides the audio system characteristics and normative specifications. It includes the Visually Impaired (VI) associated service, which is a complete program mix containing music, effects, dialogue and a narrative description of the picture content. This standard is created by the Advanced Television Systems Committee (ATSC) and while the 2014 of the standard is available for free,[6] ATSC no longer makes the 2010 edition available.
4. Request for Comment (RFC) 4103: Real-Time Transport Protocol Payload for Text Conversation (2005). This standard establishes specifications for how to carry real-time text (RTT) conversation session contents in Real-time Transport Protocol (RTP) packets. RTT is used alone or in connection with other conversational modalities to form multimedia conversation services. RTT in multimedia conversation sessions is sent character-by-character as soon as it is available, or with a small buffering delay. Free copies of this RFC are available at the Internet Engineering Task Force site and use is not restricted.[7]
5. ISO 14289-1 (PDF/UA-1): Document management applications—Electronic document file format enhancement for accessibility—Part 1: Use of ISO 32000-1 (2014). This standard is the consensus international specification for accessible PDF. PDF/UA-1 provides a technical, interoperable standard for the authoring, remediation and validation of PDF content to ensure accessibility for people with disabilities who use assistive technology, such as screen readers, screen magnifiers, joysticks and other technologies used to navigate and read electronic content. Although the NPRM states that “copies of this standard may be purchased from the International Organization for Standardization (ISO), the 2012 version is no longer for sale and the organization now sells the 2014 version for CHF 88 ($94) and the 2012 version must be procured from a third party vendor for $114[8] and is subject to stringent terms and conditions.[9]
6. ITU-T Recommendation G.722: Series G: Transmission Systems and Media, Digital Systems and Networks Digital Terminal Equipments [sic]—Coding of voice and audio signals, 7 kHz Audio-Coding within 64 Kbits/s (September 2012). This standard specifies a coder-decoder program that provides 7 kHz wideband audio at data rates from 48, 56, and 64 kbits/s. This standard may be obtained from the International Telecommunication Union, Telecommunications Standardization Sector (ITU-T) for no charge.[10]
7. ITU-T Recommendation E.161: Arrangement of digits, letters and symbols on telephones and other devices that can be used for gaining access to a telephone network (February 2001). This standard defines the assignment of the basic 26 Latin letters (A to Z) to the 12-key telephone keypad. This standard may be obtained from ITU-T at no charge.[11]
8. TIA 825-A: A Frequency Shift Keyed Modem for Use on the Public Switched Telephone Network (2003). This standard is a specification for TTY signals on the public switched telephone network interface. Copies of this standard, which is published by the Telecommunications Industry Association (TIA), may be obtained from the IHS Standard Store (IHS) for $65[12] and is subject to strict terms of use.[13]
9. TIA 1083: Telephone Terminal Equipment Handset Magnetic Measurement Procedures and Performance Requirements (2007). This standard defines measurement procedures and performance requirements for the handset generated audio band magnetic noise of wire line telephones, including digital cordless telephones. Copies of this standard, which is published by the Telecommunications Industry Association (TIA), may be obtained from the IHS Standard Store (IHS) for $116 subject to strict terms of use.[14]
10. Web Content Accessibility Guidelines (WCAG) 2.0: W3C Recommendation (December 2008). WCAG 2.0, published by the W3C Web Accessibility Initiative (W3C), specifies success criteria and requirements to make Web content more accessible to all users, including persons with disabilities. The W3C Web site also provides online technical assistance materials linked to each success criteria and technical requirement. Copies of this standard may be obtained from the W3C Web Accessibility Initiative. Free copies of WCAG 2.0, and its related technical assistance materials, are available online.[15]

In sum, if Part 1194 becomes a binding part of the Code of Federal Regulations, those wishing to understand the law (including federal government employees), will need to spend $646 to purchase components of that law. Furthermore, finding these materials is exceedingly difficult, requires purchases from a large number of sources, and most of the materials are provided only under restrictions on use that make it impossible for us to use the integral text of the proposed law to inform our fellow citizens of their rights and obligations.

3. Availability During the Comment Period

The NPRM indicates that several standards are available during the comment period, but the mechanisms provided by the U.S. Access Board are insufficient to allow citizens to inform themselves and provide comments in a timely manner. In particular:

1. With respect to ANSI/HFES 200.2 (2008): Human Factors Engineering of Software User Interfaces—Part 2: Accessibility, the NPRM notes that “HFES has agreed to make a read-only copy of this standard available during the comment period upon request.”[16] On May 8, we wrote to Ms. Lynn Strothers, Executive Director of HFES, and she rapidly responded with a copy of Part 2 of the HFES standard. However, in a followup conversation on May 13 regarding availability of the standard if the rule is adopted, we learned that HFES has no current plans to make Part 2 available as a separate product and currently plans to require all parties to purchase the full HFES standard including parts not incorporated into law. As noted early, any purchase is subject to terms and conditions purporting to restrict reuse of this portion of the law.
2. With respect to ANSI/IEEE C63.19-2011: American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids, the NPRM states “IEEE has also agreed to make a read-only version of this standard available on the organization's Web site during the comment period.” A search of the IEEE main web site as well as the Standards Web site did not yield any indication of a version of C63.19-2011 available for reading. We used the “Contact Us” facilities in 2 locations on the web site to submit 2 requests for help May 8, 2015. One answered by pointing us to the 2014 version of the standard for purchase, the second answered by suggesting we go look on the ANSI web site. On the ANSI web site, in the “reading room” facility, we were able to find a read-only copy of the standard, but only after registering and providing information such as a phone number, email address, and postal address, and accepting strict terms of use.
3. With respect to A/53 Digital Television Standard, Part 5: 2010 AC-3 Audio System Characteristics (2010), the NPRM states: “Free copies of A/53 Digital Television Standard are available online at the organization's Web site” however that Internet Address listed in the NPRM results in a “Not Found” error message.[17]
4. With respect to ISO 14289-1 (PDF/UA-1): Document management applications—Electronic document file format enhancement for accessibility—Part 1: Use of ISO 32000-1 (2014), the NPRM states: “Access Board staff is in discussion with ISO about making a read-only version of this standard available on the organization's Web site during the comment period. Please consult the Access Board Web site for updates on the availability of this standard during the comment period.” On May 11, 2015, Mr. David Baquis of the U.S. Access Board informed us “We have been in regular contact with the standards development organization but they have not yet made the standard reasonably available.”
5. With respect to TIA 825-A: A Frequency Shift Keyed Modem for Use on the Public Switched Telephone Network (2003), the NPRM states “TIA has agreed to make a read-only version of this standard available, upon request, through TIA's Web site (www.tiaonline.org) during the comment period.” TIA does provide a link to a restricted site provided by IHS which expires on May 28, the deadline for comments. That site requires registration of the user, acceptance of terms of use, and then the file may only be accessed if the user has installed the proprietary “FileOpen Plug-In for Adobe Acrobat/Reader.”
6. With respect to TIA 1083: Telephone Terminal Equipment Handset Magnetic Measurement Procedures and Performance Requirements (2007), the same restricted and limited access is provided as for TIA 825-A. Particularly discouraging with the IHS registration procedure to access these two standards is users must click on an “IHS Notice” that reads “the materials contained herein have been reproduced and distributed by IHS Inc. and are governed by Terms and Conditions of Use” but the user is never given an opportunity to read those Terms and Conditions of Use before being given a choice to “Accept” or “Decline.”

In summary, of the 10 standards reference in the NPRM, six of them are exceedingly difficult to access. The NPRM adds, “A copy of each referenced standard is available for inspection at our agency's office, 1331 F Street NW, Suite 1000, Washington, DC 20004.”However, the population of those affected by the proposed rule are located throughout the country, and it is not reasonable to expect people to travel to Washington, D.C. to be able to inspect these documents.

4. Accessibility of the Incorporated Standards

Both of the TIA standards available for inspection through IHS require the use of the FileOpen Plugin, which only works with the Adobe Acrobat Reader. Other PDF readers, such as the native PDF display facility in most browsers will not work with these files. Once this plugin has been installed, the user may register at IHS, accept the missing Terms and Conditions of Use, and attempt to access the TIA 825-A standard and the TIA 1083 standard.

Inspection of the document property on both of these files indicates that printing, page extraction, commenting, and other operations are not allowed. Most importantly, neither “Content Copying” nor “Content Copying for Accessibility” are allowed. We attempted to use these standards using common accessibility tools:

• The Adobe Acrobat “Read Out Loud” accessibility function[18] does not work and yields an error message that says “Read out loud cannot be activated for this document because it’s permissions do not allow for content copying for accessibility.”
• The JAWS Professional Screen Reader software[19] installed on a 64-bit version of Windows 8 was unable to access any of the text. Like “Read Out Loud,” JAWS is used to read the text of a document.
• The Text magnification and screen reading software[20] installed on a 64-bit version of Windows 7 Professional was likewise unable to access any of the text in the two TIA standards.

The TIA standards are not the only ones with significant accessibility issues. The 2012 edition of ISO 14289-1 was obtained from Thomson Reuters, the designated reseller, for $114 and is subject to significant restrictive terms of use. The standard is all about making PDF documents accessible, yet the first thing that comes up when the document is an error message that reads:

This 24-page document is untagged and must be prepared for reading. While the document is being analyzed, your assistive technology will not be able to interact with this application.

The HFES 200.2 standard had similar issues of being improperly prepared for accessibility. The IEEE standard inspected via the ANSI “reading room” had “content copying for accessibility” (as well as every other permission) disabled. Furthermore, the document “expires” quickly and the user is required to go through a complicated procedure to re-register and re-access the document.[21]

Of the 10 standards being proposed to be incorporated by reference, five of them have significant accessibility issues, violating the Access Board’s own rules. This is a direct violation of the Rehabilitation Act of 1973 (29 U.S.C. 794d ), which requires that when “Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal individuals who are not individuals with disabilities.” 36 CFR 1194.1.

5. Restrictions On Use of the Law Hinders Innovation and the Ability of Citizens and Government Employees to Be Informed

Under the mechanism the U.S. Access Board proposes, users wishing to comment on the proposed rule or, if the rule is adopted, wishing to learn about U.S. law, must go through a complicated procedure, starting with accessing the CFR to read the main text of the regulation, then having to visit at least 8 different sites to find the remaining texts incorporated by reference.

Even if a person is successful in visiting all those sites, one is left with a pile of standards in many different formats, ranging from PDF documents with functions such as accessibility and printing purposely disabled to different kinds of HTML documents. Even the highly professional products from the W3C and the IETF are coded with very different standards for the formatting of text, making them very different from each other.

Even if one is able to purchase all these documents, the terms of use are so onerous (and so aggressively stated), that it would take a brave user to attempt to work with the texts of the law to make it more useful or more accessible.

One of the goals of Public Resource is to be able to set the text of the law in a manner where all the components look the same and are cross-linked to each other. Furthermore, considerable value can be added to the navigational functions of some of these laws, such as providing internal links (so that when a reference to another section of the document is mentioned, a hyperlink allows the reader to immediately go to that section). We also reformat documents in valid HTML with attention to issues such as accessibility by users with disabilities and accessibility across different kinds of computing platforms, such as mobile phones.

Making the full text of an important law available in a more useful fashion, such as the proposed Part 1194 accessibility standards, is an important role to play. One of the reasons there is no copyright on the law is precisely so such innovation can take place. Imagine how difficult it would have been for the West Publishing Company to create the National Reporter System if different courts all imposed restrictions on reuse of their opinions? In the United States, the law belongs to the people, and the people need to be able to not only read, but also speak the law.

We have submitted to this regulatory docket as a comment an example of how powerful it can be to pull the full text of a law, such as the proposed new Part 1194, into a common format. We have retagged 3 documents into a common WCAG-compliant HTML5 format: the proposed text of the rule,[22] the IETF Request for Comment, and the HFES 200.2 standard. Because the documents are created with the HTML standard format, we are then able to create PDF documents, e-books, and other formats, significantly improving the availability and accessibility of the law.

The value of this exercise can be seen by comparing the 3 sample documents we have prepared, which are compliant with the W3C accessibility guidelines, with the text of the source documents referenced by the Access Board. As noted earlier, the HFES 200.2 document was received as an untagged PDF document. By converting it to valid HTML with features such as internal crosslinks and external links, the document has been made significantly more useful.

Likewise, the original source document for RFC 4103 as well as the text of the rule as posted on the Federal Register site has a number of WCAG accessibility errors. Even the text of the proposed rule on the U.S. Access Board web site had a number of WCAG errors and warnings.[23] This is not meant as a criticism of the IETF, Federal Register, or Access Board web sites, it simply illustrates why it is important to allow anybody to work with the text of the law of the United States in order to allow citizens to inform each other. Those 3 documents, in addition to being submitted as part of this comment to the rulemaking docket, may be viewed online:

• Proposed Part 1194 (reformattted)
• RFC 4103 (reformatted)
• HFES 202.2 (reformatted)

In the course of this exercise of converting these 3 documents to accessible HTML, we noted that both the IETF RFC and the Federal Register proposed rule were original created in a markup language that would make it quite easy to provide better navigation facilities for people who are visually impaired. Internet RFCs are authored in an XML format defined in RFC 2629[24] and both the Federal Register and the Code of Federal Register are marked up in a markup language known as SGML and versions of these files are now available in XML format.[25]

Because the HTML version of RFCs and the Federal Register are programmatically generated, it would not be difficult for the IETF or the Office of the Federal Register to make some simply modifications to the transformation code to make both types of documents significantly easier to use. For example, the proposed Part 1194 had headers only for major sections, and by adding level 4 and 5 indicators for the individual provisions (e.g., “413.1” or “413.1.2”), more structure is provided to make the document more navigable. Use of the WAI-ARIA standards[26] in the transformation from XML to HTML would not be difficult and would provide great benefit.

The U.S. Access Board should welcome such activity and the promise it brings of making the available in new and useful formats to federal employees who must observe these regulations as well as the broad population that the Board is attempting to reach. Informing our fellow citizens should be encouraged not discouraged, but the way the Notice of Proposed Rulemaking is structured clearly discourages this kind of innovation and access.

6. The Interests of Commenters

Public Resource, a non-profit organization, would be one of the many entities adversely and unlawfully disadvantaged if the U.S. Access Board issues a final rule that incorporates standards without providing a means for people to obtain and use those standards without charge and without restriction. Public Resource’s mission is to improve public access to government records and the law. The issuance by the U.S. Access Board of a regulation incorporating by reference standards that are only available to those who pay a fee and must accept a license before reading the law is the kind of government action that Public Resource works to prevent.[27]

More generally, such a rule would make it less likely that affected people who need access to the law—federal government workers, state and local government workers, businesses, engineers, advocacy organizations, community leaders, journalists, and others—would have access to the law.

Examples of those affected parties include the co-signatories to this comment:

Mr. Sina Bahram is an accessibility consultant at Prime Access Consulting and a doctoral candidate in computer science at North Carolina State University. Mr. Bahram’s doctoral research is in the field of Human Computer Interaction (HCI) focusing on multi-modal approaches for eyes-free exploration of spatial information. As a recognized expert in accessibility, Mr. Bahram’s consulting clients have included high-tech startups, Fortune 1000 companies, and both private and nationally-funded museums. In 2012, Mr. Bahram was recognized as a White House Champion of Change by President Barack Obama for his work enabling users with disabilities to succeed in Science, Technology, Engineering, and Math (STEM) fields. In 2015, the international accessibility community recognized Mr. Bahram as an Emerging Leader in Digital Accessibility at the annual Knowbility Community Heroes of Accessibility Awards.

Mr. James S. Tyre has been a practicing attorney since 1978, focusing primarily on speech issues. As Special Counsel to the Electronic Frontier Foundation, Mr. Tyre has participated in a number of significant cases including Universal City Studios v. Reimerdes, Felten v. RIAA, Jewel v. NSA, and First Unitarian Church v. NSA. Mr. Tyre is a co-founder of The Censorware Project. Mr. Tyre lost sight in his right eye due to multiple retina detachments and has substantial vision impairment in his left eye. He believes strongly in the rule of law, including the principle that citizens must be able to access and make copies of the laws that define our rights and obligations in a democratic society.

7. Affected Parties and the Public Interest

Many entities have an interest in shaping, understanding, evaluating, and monitoring compliance with the new rules. Government officials, from the federal to the local level, may have responsibility for oversight of the new regulations. Media may need to read and understand the law to fairly and accurately report on issues affecting accessibility. Policy and advocacy organizations, including those representing people in communities or workplaces affected by the rules, need ready access to the law to do their work.

These standards are not only for the use and benefit of a small group. While not everyone has the training and experience to readily evaluate or monitor compliance with the standards incorporated in the proposed regulation, many people do, and interested advocacy and media outlets, among others, may seek out employees, volunteers, consultants and others who have such capacity to advise them.

Yet even though accessibility for individuals with disabilities is very much a matter of public concern, the Access Board appears to be acting as if the details of these issues can comfortably be left in the hands of those who already have purchased the relevant standards incorporated into law, or can easily afford to purchase such standards. The inaccessible nature of many of the core documents together with the aggressive terms of use will prevent many affected parties from ever reading the law on this important subject.

Developments with respect to other areas of regulation, such as within the U.S. Department of Transportation—real-life, high-stakes matters like the tragic, multiple-fatality incidents involving the 2010 Deepwater Horizon Gulf oil spill and the 2010 San Bruno, California, natural gas pipeline explosion—underscore the importance of public access to standards incorporated by reference.

In the wake of the Deepwater Horizon spill in the Gulf of Mexico, with the oil production industry under heavy scrutiny by government, the media, and the public, the American Petroleum Institute eventually posted on its website many of its safety standards, including all of the standards that had been incorporated by reference into federal law.[28] Until that decision by the API, as the Deepwater Horizon poured oil into the Gulf for five months, and in the weeks after, it had been difficult for citizens to evaluate the adequacy of federal regulations, because key components of those regulations were hidden behind pay walls.

Similarly, when a natural gas pipeline in San Bruno, California, exploded that same year, “the House of Representatives considered whether relevant pipeline safety standards should have been more freely accessible to first responders.”[29] Should those standards, in a life-threatening emergency situation and beyond, have been readily available to first responders? Of course.

When matters get serious, our society has had to get serious, and allow the law to be readily available for key actors and for the public to review.

The status quo approach undermines public safety, public policy, and accountable government. First responders, government agencies, workers, companies, and others should have the easiest access possible to these standards so that they may understand their legal obligations, be prepared to react effectively in an emergency, to educate themselves easily before any emergency occurs, and to discuss and debate means for improving safety laws.

But not all affected entities can afford to pay the steep prices for all the standards incorporated into federal regulations.

In this regard, we are in strong agreement with a 2012 comment to the Pipeline and Hazardous Materials Safety Administration (PHMSA) as it considered the implementation of section 24 of the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011.[30] That comment was offered jointly by the Western Organization of Resource Councils (WORC), a regional network of seven grassroots community organizations with 10,000 members and 38 local chapters, and Dakota Rural Action, a grassroots family agriculture and conservation group:

Representing the public interest, we strive to create a more fair and open government. Secret laws, or a government that only allows access to laws by a segment of the public able to pay for it, goes in direct opposition to the values of a participatory democracy>…

As of June 2010 there were 85 standards referenced in 46 CFR 192, 193, 195. For a citizen to have access to these referenced standards they would have to pay private organizations upwards of $2,000. These associated costs are an insurmountable burden for an average citizen, making it practically impossible for the public to knowledgeably comment in a rulemaking proceeding, or to propose changes to regulations that already incorporate referenced standards.

8. Law Governing the Availability of Standards Incorporated by Reference

The fundamental law of the United States requires that the government make standards that are incorporated by reference into federal regulations widely available to the public, without charge, and that such standards be deemed in the public domain rather than subject to copyright restrictions. Citizens have the right, without limitation, to read, speak, and disseminate the laws that we are required to obey, including laws that are critical to public safety and commerce. Open, effective, and efficient government and robust democracy require such free availability of standards incorporated by reference.

A. The Freedom of Information Act and Regulations Governing Incorporation by Reference Compel the Access Board To Make These Incorporated Standards Freely Available

The Freedom of the Information Act allows the Director of the Federal Register to deem as effectively published in the Federal Register material that is incorporated by reference into a regulation, but only if such material is “reasonably available to the class of persons affected thereby.” 5 U.S.C. § 552(a)(1). Part 51 of Title 1 of the CFR implements this provision. The Director of the Federal Register is charged with approving each instance of incorporation by reference requested by federal agencies.

In carrying out this responsibility, the Director “will assume in carrying out the responsibilities for incorporation by reference that incorporation by reference…is intended to benefit both the Federal Government and the members of the class affected…" 1 CFR § 51.1(c)(1). In order to be eligible for incorporation for a reference, a publication must meet standards including that the publication "does not detract from the usefulness of the Federal Register publication system” and "is reasonably available to and usable by the class of persons affected.” 1 CFR § 51.7(a)(2)(ii) and (a)(3).

The advent of the Internet has fundamentally transformed what it means for material to be reasonably available. The Internet has brought the possibility that all standards incorporated into federal law can be instantly available online, linked directly to the relevant provisions of the CFR.

Before the Internet, it was impractical to offer within the pages of the Federal Register and Code of Federal Regulations the often voluminous standards incorporated by reference into agency rules; the regulations, at 1 CFR § 51.7(a)(3) specifically note that material is eligible for incorporation by reference if it “[s]ubstantially reduces the volume of material published in the Federal Register.”

The widespread availability of the Internet, along with technologies like high-speed scanners and large-capacity hard drives, eliminates any argument that incorporation of standards through simple reference—as opposed to publishing the full text of the standard with the regulations—is needed to save space or trees.

Indeed, the Internet era provides a tremendous opportunity for government to inform its citizens in a broad and rapidly updated manner about the legal standards that must be met in carrying out daily activities. It also allows for companies, non-profits, and citizens to utilize and organize this information to enhance compliance, better understand the provisions of law, improve public safety, increase economic efficiency and opportunity, and highlight opportunities for effective reform.

Another strong advantage of widespread public availability of standards incorporated by reference would be to highlight the need for government to replace old, outdated standards with new ones. Public Resource has conducted an extensive examination of the Code of Federal Regulations with specific focus on incorporations by reference, coupled with an extensive examination of the Standards Incorporated by Reference (“SIBR”) database maintained by the National Institute of Standards and Technology. Many standards incorporated by reference into the CFR have been superseded by new standards from the SDOs. Greater public access to standards incorporated by reference into federal regulations might alert policy and industry communities to the fact that federal rules are too often connected to outdated private standards and are in need of updating to improve public safety and accessibility.[31]

Today, the only thing impeding the broader availability to the public of standards incorporated by reference is the belief of some SDOs that they have the right to bar the public from reading and speaking these provisions of law, because they fear that broader public access will reduce their volume of sales of such standards.

The Access Board’s solution for those who do not want to purchase the standards—to read these at the Access Board’s offices in Washington, D.C.—does not fix the problem: People should not be expected to travel from their homes to Washington DC in order to read the laws they are bound to obey. This solution is also inadequate because the agencies are unlikely to allow people to make copies of the standards so that they may consult them once they leave the federal buildings where they are held. Requiring citizens to memorize hundreds of pages of law is tantamount to denying them access entirely.

Given all these factors, the Access Board should determine that the mandates of FOIA and the public interest require that the standards it incorporates by reference into its final rule be written directly into the rule or else available on a public website without charge, and without limitation of use.

That would include the Access Board making clear that its obligations would not be satisfied by the relevant SDO posting its standard with the kind of restrictions that some SDOs have imposed as they have, in recent years and months, posted some standards on their own websites—forcing persons wishing to read the standards to register, prohibiting copying, or printing, or bookmarking, curtailing search capacity, or otherwise limiting the capacity of all persons to read, speak, and use standards that have become binding law.

Presented with a petition by legal scholars, along with Carl Malamud of Public Resource, making the argument for free online access, the Office of the Federal Register recently addressed and modified its regulations governing incorporation by reference in a final rule (“the OFR rule”) issued on November 7, 2014, and effective January 6, 2015.[32] (As noted, the Board has sought in the NPRM to address the new rule’s requirements.) We believe that language in the preamble to this OFR rule inappropriately elevates copyright assertions of the SDOs over the mandates of FOIA. But the OFR rule does not in any respect bar the Access Board (or any other agency) from making its own judgments as to its legal and public obligations regarding standards incorporated by reference and taking appropriate steps in this rulemaking to ensure that the law, including standards incorporated in the instant rule, is freely available to all.

OFR refused to grant the petition’s central request—that it hold that material incorporated by reference in the Code of Federal Regulations be available online and free of charge. But OFR gave as its reason its view that OFR itself lacked the power to issue such a broad rule for all federal agencies: “petitioners’ proposed changes to our regulations go beyond our statutory authority.” OFR explained: “we are a procedural agency. We do not have the subject matter expertise (technical or legal) to tell another agency how they can best reach a rulemaking decision.”

In the preamble to its final rule, OFR indicated that agencies do have the discretion to make the text of standards incorporated by reference available free of charge:

One commenter stated that since it is the text of standards that must be available (citing Veeck for the proposition that the law is not subject to copyright law), agencies should copy the text of IBR'd standards and place the text online. In a footnote, the commenter suggested that OFR require agencies to place the text of their regulatory obligations” in their online dockets. This way the “text of the legal obligation and not the standard as such” is available online for free. [footnote omitted]

We leave it to the agencies to determine if they should follow this commenter's suggestion.

The OFR preamble, therefore, confirms what should be obvious: that specific agencies may make their own choices about reasonable availability, including placing incorporated standards online. The Access Board should act here to do just that.[33]

B. The Constitution and Judicial Decisions of the United States Compel the Access Board To Make These Incorporated Standards Freely Available

As discussed in greater detail in Public Resource’s comment in OMB Request for Information 2012–7602,[34] the U.S. Supreme Court in Wheaton v. Peters, 33 U.S. 591 (1834), and Banks v. Manchester, 128 U.S. 244 (1888), held that the law “is in the public domain and thus not amenable to copyright.” Veeck v. Southern Bldg. Code Congress International, Inc., 293 F.3d 791, 796 (5th Cir. 2002) (en banc), cert. denied, 539 U.S. 969 (2003). Wheaton, Banks, and the en banc decision of the United States Court of Appeals for the Fifth Circuit in Veeck all concerned comparable fact patterns: One private party was trying to stop another private party from publishing material that was part of the law. In none of those three cases was anyone trying to prevent the first party from selling copies of such material, and we do not question the right of SDOs to sell standards incorporated by reference into law. Rather, we believe, as the courts concluded in those cases, that once material has become law, then other parties have the right to read it and to speak it, without limitation—and that that proposition clearly applies to standards incorporated by reference into federal law, notwithstanding assertions of copyright by SDOs.

The principle that the law must be public and available to citizens to read and speak has its roots in the concept of the rule of law itself, as well as central provisions of our Constitution. See generally Thomas Henry Bingham, The Rule of Law, 37–38 (Penguin Press 2011) (“The law must be accessible…the successful conduct of trade, investment and business generally is promoted by a body of accessible legal rules governing commercial rights and obligations.”); Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34 (Cambridge Univ. Press, 2004) (“Citizens are subject only to the law, not to the arbitrary will or judgment of another who wields coercive government power. This entails that the laws be declared publicly in clear terms in advance.”). That is why, going back to ancient times, societies that replaced the rule of tyrants with the rule of law prominently displayed the laws in public places for all to see. See, e.g., Robert C. Byrd, The Senate of the Roman Republic: Addresses on the History of Roman Constitutionalism 33, 128, 135 (U.S. Government Printing Office, 1995).

As this history suggests, open access to the law is essential to a free society. Citizens are expected to obey the law, but they cannot do so effectively if they do not know it. Further, the First Amendment right to freedom of speech is imperiled if citizens are barred from freely communicating the provisions of the law to each other. Cf. Nieman v. VersusLaw, Inc., No. 12-2810, at *2 (7th Cir. Mar. 19, 2013) (“The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed.”).

By the same token, equal protection of the laws and due process are jeopardized if some citizens can afford to purchase access to the laws that all of us are bound to obey (with potential criminal penalties for non-compliance), but others cannot. Cf. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966) (a state violates the Equal Protection Clause “whenever it makes the affluence of the voter or payment of any fee an electoral standard”); see also Magna Carta 1297 c. 9 (cl. 29) (1297) (“We will sell to no man, we will not deny or defer to any man either Justice or Right.”).

Consistent with these fundamental principles, it is unlawful and unreasonable for the Access Board to make these standards part of binding United States law without providing a means for citizens to access them without cost or restriction.

9. Granting Citizens Access to Their Own Laws Will Not End the Creation of Public Safety Standards

Opposition to allowing citizens to freely read and speak the public safety standards that are incorporated into law seems to rest on the premise that allowing such access will end the standards-creation process and thereby imperil safety. The argument advanced is that if the government required that all materials incorporated by reference be available for free, then SDOs would react not by making their standards truly available to the public online but rather by ending or curtailing their work to create standards and/or by resisting government efforts to incorporate their standards into law.

Those assumptions of fact and law have been soundly refuted.

The en banc U.S. Court of Appeals for the Fifth Circuit in Veeck specifically addressed the policy and empirical issues regarding what might happen if courts, as that court did, expressly upheld the right of a citizen to communicate the law, in that case the right of a citizen to post the building code of his town, derived from a model code published by SBCCI, on the Internet. Rather than assume that the entire system of private standard-setting might collapse, the Fifth Circuit examined the arguments and determined that allowing citizens to speak their own laws would not end this beneficial system:

Many of SBCCI’s and the dissent’s arguments center on the plea that without full copyright protection for model codes, despite their enactment as the law in hundreds or thousands of jurisdictions, SBCCI will lack the revenue to continue its public service of code drafting. Thus SBCCI needs copyright’s economic incentives.

Several responses exist to this contention. First, SBCCI, like other code-writing organizations, has survived and grown over 60 years, yet no court has previously awarded copyright protection for the copying of an enacted building code under circumstances like these. Second, the success of voluntary code-writing groups is attributable to the technological complexity of modern life, which impels government entities to standardize their regulations. The entities would have to promulgate standards even if SBCCI did not exist, but the most fruitful approach for the public entities and the potentially regulated industries lies in mutual cooperation. The self-interest of the builders, engineers, designers and other relevant tradesmen should also not be overlooked in the calculus promoting uniform codes. As one commentator explained,

…it is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self-regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.

1 Goldstein § 2.5.2, at 2:51.

Third, to enhance the market value of its model codes, SBCCI could easily publish them as do the compilers of statutes and judicial opinions, with “value-added” in the form of commentary, questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees for the massive amount of interpretive information about the codes that it doles out. In short, we are unpersuaded that the removal of copyright protection from model codes only when and to the extent they are enacted into law disserves “the Progress of Science and useful Arts.” U.S. Const. art. I. § 8, cl. 8.

293 F.3d at 806 (footnotes omitted).

These conclusions expressed by the court in Veeck are even more powerful today. Notwithstanding the issuance of the Veeck decision itself, and the U.S. Supreme Court’s denial of review after being informed by the Justice Department that “[t]he court of appeals reached the correct result,”[35] SDOs have continued to create and issue standards for another decade. SDOs also have continued to press federal and state authorities to incorporate their standards into law. [36]

Given these factors, we strongly believe that, if the Access Board and other agencies required that only standards made available without restriction be eligible for IBR, then (1) SDOs would continue to promulgate standards and urge their incorporation into law; (2) SDOs, government, and various private entities would make standards incorporated by reference available to the public without restriction, and the courts would uphold any challenges to such action, allowing the Access Board and other agencies to be confident that standards it was considering for IBR approval would indeed be publicly available.

10. Conclusion: A Path Forward

Public Resource, the co-signatories, and a wide range of other parties are affected by the proposed rule and the incorporation by reference of the applicable standards. Many such parties cannot reasonably afford to purchase all the relevant standards incorporated by reference in these areas. In our society, based on the rule of law, all citizens must have ready access to their own laws. Accessibility for individuals with disabilities will be greatly improved if these standards are made available to the public without charge or restriction on use.

Because it is illegal and arbitrary to publish the proposed rule without making the incorporated materials freely available, any final rule based on this Notice of Proposed Rulemaking as presently formulated will be defective and the resulting rule will be invalid.

If the Access Board wishes to pursue the strategy of incorporation by reference as the mechanism to specify aspects of the regulation, the Access Board should re-publish the proposed rule with the standards available freely online and in an accessible format, and it should re-open the comment period. It is important that the documents that are proposed to be incorporated by reference be freely available for reuse if the regulation is adopted, in particular citizens should be able to reformat the proposed law and then the law to make it more accessible and more useful.

There is a simple alternative that the Access Board can pursue which would make the current Notice of Proposed Rulemaking valid, and that is to use incorporation by permission instead of incorporation by reference. With incorporation by reference, the current position of the Access Board is that the materials are part of the law but should remain physically outside of the Code of the Federal Regulations. The reasons for this position is apparently a mistaken belief that somehow this allows the documents to maintain copyright even though they are part and parcel of the law of the land, a belief that flies in the face of longstanding public policy, including numerous Supreme Court and Court of Appeals opinions[37] and the U.S. Copyright Office statement of policy on this subject.[38]

We note also that in the case of at least some standards, there are many grounds to question the validity of these copyright assertions. In many cases, these standards are created by large committees of volunteers, including federal government workers, who may or may not have properly assigned their copyright interests to the Standards Development Organization. In addition, there are questions in many cases if the texts of the standards state mere facts and are not copyrightable as well as questions when the text used comes from another source, such as an earlier version of the standard or other standards or materials. Many standards clearly fall within the exclusions to copyrightability stated in the Copyright Act:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 USC 102(b).

The original purpose of incorporation by reference was not to permit an end run around the principle that the law belongs to the people and thus allow a private organization to charge for the law and require a license for reuse. The original purposes of incorporation by reference were two fold. First, it was a way of allowing the Office of the Federal Register to save space in an era when the Federal Register and the Code of Federal Regulations were always printed. In this case, incorporation is approved because it “substantially reduces the volume of material.” 1 CFR 51.7(a)(3). Secondly, incorporation was used when replicating material already published in an official manner, such as the U.S. Code or previous articles in the Federal Register, could lead to inconsistencies and errors. 1 CFR 51.7(b)(2).

Neither of these reasons holds water for the current incorporations by reference proposed by the Access Board.[39] Why not simply incorporate the materials as appendices to Part 1194 and ask the standards bodies for permission to do so? Incorporation by permission can include a notice at the beginning of the materials indicating the source of the material. For example:

Appendix X of Part 1194 contains the text of a document originally published by the Institute of Electrical Engineers as ANSI/IEEE C63.19-2011, American National Standard for Methods of Measurement of Compatibility between Wireless Communications Devices and Hearing Aids. ANSI/IEE C63.19-2011 may be obtained from the Institute of Electrical and Electronics Engineers (IEEE), 10662 Los Vaqueros Circle, P.O. Box 3014, Los Alamitos, CA 90720-1264. This standard is also available for purchase on the IEEE Web site (http://www.ieee.org). In addition to the 2011 version of this standard, the IEEE has more current versions available as well as a number of related products.

The effect of incorporation by permission is that ANSI/IEEE C63.19-2011 itself is no longer the law, so it maintains any copyright that may have resided in the document. The law itself is also clearly available for citizens to read and speak. Perhaps most importantly, the IEEE is given a strong and assertive “shout-out” in U.S. law, a tremendous opportunity for the organization to sell authenticated copies of the standard at issue, versions with commentary or other notes, newer versions of the standard, products such as red-lines, and related standards.[40] This “gold seal of approval” from federal lawmakers is a huge marketing advantage, giving the standards body a wonderful position from which to sell products and services. [41]

We believe it would not be unreasonable for the Access Board to approach the organizations who have inaccessible (or missing) standards proposed for incorporation by reference and propose the simple mechanism of incorporation by permission. The IEEE, ISO, HFES, ATSC, and the TIA are all organizations with missions to make our world a better place, and broad availability of standards having to do with accessibility is certainly in line with their missions. [42]

If for some reason, an SDO refuses to grant such permission, it would not be hard to for the Access Board to replace those documents with an existing or a new standard. A “Call for Standardization” on the subject, e.g., of communication between hearing aids and wireless devices, could be met by numerous groups, including the ITU, the IETF, and many other groups with substantial expertise in this particular domain of wireless communications. Likewise, if ISO is not able to grant permission to use a standard for how to make PDF documents accessible, there are a number of other organizations with significant expertise that could provide a voluntary consensus standard in this area.

The Access Board should be congratulated for the hard work that has gone into the proposed rulemaking. The benefits of updating the rules are considerable, such as allowing Federal employees or persons with a disability to increase the range of tasks they can perform, RTT to allow persons with hearing loss to communicate in an interactive fashion and, more generally, “enhanced ICT accessibility for persons with disabilities can be expected to improve civic engagement, decrease stigma, promote equality, and enhance integration into American society.”[43] These are important outcomes and we fully support the efforts of the Access Board to update these regulations.

Updating regulations about accessibility and including in those regulations documents that are not accessible or available flies in the face of a primary mission of the Access Board, “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”[44] The Access Board regulations will have far more impact if the law is available for citizens to read and speak without restriction. The restrictions are not necessary and undermine the fundamental purpose of our law, to inform our citizens of their rights and obligations. We ask the Access Board to correct this flaw in the rulemaking so that these fundamental purposes may be achieved.

Thank you once again for all the hard work the U.S. Access Board has devoted to this important task.

Sincerely yours,

David Halperin
Of Counsel
Public.Resource.Org

Carl Malamud
President and Founder
Public.Resource.Org

Co-Signatories:

Mr. Sina Bahram

Mr. James S. Tyre

11. Notes