Comment of Public.Resource.Org and Co-Signatories, Notice of Proposed Rulemaking, Docket Number: FHWA-2015-0003

1. Introduction

Public.Resource.Org (“Public Resource”) and the undersigned co-signatories submit this comment to object to one aspect of the proposed Federal Highway Administration (“the FHWA”) regulation entitled “Design Standards for Highways”: It proposes to incorporate by reference nine public safety standards that are not reasonably available to people affected by the rule, as required by law.[1]

This proposed rule is an important update to our national transportation regulations, one that aims to bring design standards for highways into conformance with recent specifications for safety. The proposed rule applies to all new construction, reconstruction, resurfacing (except for maintenance resurfacing), restoration, and rehabilitation projects on the National Highway System (NHS). The standards apply to State Departments of Transportation and local agencies that participate in Federal-aid highway projects.

What is not clear is why the FHWA believes that it is appropriate—or in the interests of greater safety—to issue a proposed or final rule that includes major components that many people, including many interested parties, will not be able to fully access because they are only available online on a restricted and temporary basis; because obtaining these components of the law with fewer restrictions requires payment of exorbitant fees; and because of improper assertion of copyright claims that deter people from communicating the text of these provisions—that deter them from speaking their own laws.

Accordingly, Public Resource and the undersigned co-signatories are not commenting here on the substantive merits of the proposed rule. Instead, we ask the FHWA to recognize that it has acted illegally and arbitrarily at this Notice of Proposed Rulemaking (NPRM) stage in not making these standards—which are integral parts of the rule—available to us and other members of the public on a free and unrestricted basis. This unwarranted action by the FHWA 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 FHWA proposes to exclude the texts of these standards from the text of the regulation. Nor does the FHWA propose to link the online version of the regulation to websites offering free and unrestricted access to the standards. Instead, the FHWA apparently expects people to purchase the standards from private organizations at substantial cost, subject to a series of elaborate requirements and restrictions for online use and with the organizations claiming the right to prohibit purchasers from sharing these provisions of the law with others.

This failure to make public safety 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.

This failure to make these components of the regulation reasonably available also weakens public safety, because people who need full access to the safety rules are less likely to obtain such access if they must pay for it, and piece together the components of a rule from a multitude of documents.

Because it is illegal, arbitrary, and dangerous to publish this proposed rule without making incorporated standards freely available, the FHWA should re-publish the proposed rule with the incorporated public safety standards available online on a free, unrestricted basis and re-open the comment period. As to any final rule, the FHWA 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 FHWA proposes to incorporate by reference nine documents from the American Association of State Highway Transportation Officials (AASHTO) and the American Welding Society (AWS). The texts of these standards that the FHWA proposes to incorporate into the rule are not included in the rule itself, nor has the FHWA placed any of the standards online, nor have the private organizations that have issued the standards made them available for free, unrestricted, permanent public access online.

We list the nine incorporated documents, and have added with each the price to purchase the document:

1. A Policy on Geometric Design of Highways and Streets, AASHTO 2011. This standard, commonly known as the Green Book, contains the current design research and practices for highway and street geometric design. The AASHTO store sells this document for $312. An e-book version is available for $260.
2. A Policy on Design Standards Interstate System, AASHTO, January 2005. This standard supplements the Green Book with information on design traffic, right-of-way, geometric controls and criteria, cross section elements, interchanges, and bridges and other structures. The AASHTO store sells this document for $12, and it is only available in an electronic edition.
3. Standard Specifications for Highway Bridges, 17th Edition, AASHTO 2002. This standard contains design standards for the maintenance and rehabilitation of older, existing structures. The AASHTO store sells this document for $399, and it contains 1,028 pages and a Windows CD-ROM.
4. AASHTO LRFD Bridge Construction Specifications, 3rd Edition, with 2010, 2011, 2012, and 2014 Interim Revisions. The AASHTO store sells a document that also incorporates the 2015 interim revisions for $484, and it contains 688 pages and a Windows CD-ROM that includes the original specifications but not the interim revisions.
5. AASHTO LRFD Bridge Design Specifications, 7th Edition, AASHTO 2014. This standard is intended for use in the design, evaluation, and rehabilitation of bridges, and is mandated by the FHWA for use on all bridges using federal funding. The AASHTO store sells this document for $640, including the 2015 interim revisions, and it contains 1,960 pages.
6. AASHTO LRFD Movable Highway Bridge Design Specifications, 2nd Edition, including 2008, 2010, 2011, 2012, 2014, and 2015 Interim Revisions, AASHTO 2007. This standard address the design of movable highway bridges using the LRFD bridge design specifications. The AASHTO store sells a document that also incorporates the 2015 interim revisions for $273,and it contains 336 pages.
7. AASHTO/AWS D1.5M/D1.5: 2010 Bridge Welding Code, 6th Edition, with 2011 and 2012 Interim Revisions, AASHTO 2011. This document covers AASHTO welding requirements for welded highway bridges made from carbon and low-alloy construction steels. The AASHTO store sells this document for $403, and it includes 505 pages.
8. Standard Specifications for Structural Supports for Highway Signs, Luminaires and Traffic Signals, 6th Edition, AASHTO 2013. This standard specifies the structural design of supports for highway signs, luminaires, and traffic signals. The AASHTO store sells this document with the 2015 interim revisions for $281 as a looseleaf publication, $234 as a single-user PDF download and $386 for both looseleaf and PDF formats. It contains 340 pages.
9. D1.4/D1.4M: 2011 Structural Welding Code—Reinforcing Steel, American Welding Society, 2011. This standard covers welding of reinforcing steel in most reinforced concrete applications. The American Welding Society store sells this document for $120, and it contains 85 pages.

The cost to purchase for these nine standards, which will form an integral and binding part of federal law should this proposed regulation be promulgated, is $2,877 for just one set of the documents. This high cost puts these documents out of the reach of most citizens, most libraries, and most government officials.

3. Accessibility and Availability of These Nine Standards

The FHWA states in the NPRM:

The documents FHWA proposes to incorporate by reference are reasonably available to interested parties, primarily State DOTs and local agencies carrying out Federal-aid highway projects…The documents are also available for review at the U.S. Department of Transportation's National Transportation Library, the National Archives and Records Administration (NARA), or may be obtained from AASHTO or AWS.

In reality, the standards are not reasonable available to interested parties. The FHWA wrongly suggests that parties other than State DOTs and local agencies have little or no interest in the regulations, when in fact many other parties do. Review in person at federal agencies located in the Washington DC area does not provide the public with reasonable and useful access. And in contrast to some other current NPRMs by federal agencies, the relevant standards organizations here, AASHTO and the American Welding Society, are apparently not offering any free public access online to the standards—not even offering them on a temporary and/or limited basis. Moreover, even for those with the resources to pay them cash for the standards, both AASHTO and AWS have gone to great lengths to shield electronic versions of these documents, greatly limiting their potential use.

Before purchasing the Welding Society specification, users must agree to terms of use that attempt to greatly constrain their rights:

Purchasers are allowed, under the fair use provisions of the copyright laws, to print one (1) copy of a downloaded AWS publication from their computer for internal use only. The license does not permit further reproduction of the PDF file in any other manual or electronic format. Further, the PDF file may not be accessed from remote computers via a network. The AWS Store system will allow up to three attempts at downloading a PDF to accommodate software failures, connection problems, etc.[2]

Both AWS and AASHTO secure their electronic files with the “FileOpen” plugin, which only works with the Adobe Acrobat Reader and does not function with the native PDF viewers in browsers. This digital rights management software greatly limits the ability of users and is subject to severe limitations. As AASHTO explains on its AASHTO Bookstore E-Guide, “AASHTO PDF downloads use the free FileOpen security plug-in, which works only with Adobe Reader or Adobe Acrobat Professional and works reliably only on Windows computers.”[3] The E-Guide goes on to explain that “AASHTO PDF downloads will not work with tablets, phones, or e‑readers.”

The E-Guide goes on to explain that the FileOpen security plug-in prevents double-sided printing, and in order to open the PDF file a user is required to be on the Internet and enter their “E-Affiliate” login and password so the software can check back with AASHTO for authorization. If you are not on the Internet, the document will not open. If you want to allow somebody else to use the file when you are not using it, as you would with a printed book, you must give your colleague your password and login information.

In order to purchase any documents (including print versions) from AASHTO, one must become an E-Affiliate, which requires a user to agree to terms and conditions including a mandatory opt-in for commercial solicitations and allows AASHTO to share your postal information with other companies so they may solicit you as well. [4] Even after all this, if one does purchase an E-Book, one is faced with yet one more mandatory agreement, the Digital Publications Agreement, which greatly limits the rights of the user.[5]

After all this, users are finally able to download the document. After clicking on the document, entering their email address and password, they are presented with the standard in question. Pulling up document properties in Adobe Acrobat Reader shows that document assembly, content copying, page extraction, commenting, filling of form fields, signing, and creation of template pages has been disabled. Also disabled is “content copying for accessibility.”

What this means is that any user who is visually impaired cannot use the Adobe Acrobat “Read Out Loud” function. Likewise, screen readers, such as JAWS Professional, used by those who are blind, are explicitly disabled by AASHTO, and by the American Welding Society,which uses the same technology to secure its files.

Many of the users of these documents will be federal and state government workers. Section 508 of the Rehabilitation Act is explicit that the Federal Highway Administration is required to make sure that “individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities” and that “individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.” 29 U.S.C. 794d. Yet, the FHWA is proposing to mandate documents that are part and parcel of the Code of Federal Regulations and are not accessible to their own workers, to Department of Transportation workers in the states, counties, and cities, and to members of the public who are visually impaired.

4. The Interests of Commenters

Public Resource, a non-profit organization, would be one of the many entities adversely and unlawfully disadvantaged if the FHWA 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 FHWA of a regulation incorporating by reference standards that are only available to those who pay a fee is the kind of government action that Public Resource works to prevent.[6]

More generally, a final rule that incorporates standards hidden behind paywalls and other obstacles would make it less likely that affected people who want and need access to the law—academic researchers, first responders, businesses, workers, oversight bodies, community leaders, journalists, non-profit advocacy groups, and others—would have access to the law.

Examples of these affected parties are the co-signatories to this comment:

Elizabeth Deakin is Professor of City & Regional Planning and Urban Design at the University of California Berkeley, where she also is an affiliated faculty member of the Energy and Resources Group and the Master of Urban Design group. She formerly served as Director of the University of California Transportation Research Center (1998-2008) and co-director of the UC Berkeley Global Metropolitan Studies Initiative (2005-2008). Deakin's research focuses on transportation and land use policy and the environmental impacts of transportation. She has published over 200 articles, book chapters, and reports on topics ranging from environmental justice to transportation pricing to development exactions and impact fees.

Professor Deakin has served as an appointed member of a number of government posts including city and county transportation commissions and a state advisory board. She is frequently called upon to advise mayors and city council members as well as transit board members.

Kendra K. Levine is a specialist in transportation information, data and research and serves as Research Librarian for the UC Berkeley Institute of Transportation Studies. Ms. Levine is a member of the Transportation Research Board’s Urban Data and LIST committees and the TRT and Bicycle & Pedestrian Data subcommittees. She is an expert in transportation classification and terminology that she has gained indexing books, technical reports, conference proceedings, and scholarly journal articles for TRID, the largest online bibliographic database of transportation research.

Ruth Miller is a principal at BlinkTag, Inc, a consultancy of technologists and city planners that serve public agencies by providing services such as data analysis, community engagement, and graphic design. Among the projects she has worked on is the National Association of City Transportation Officials (NACTO) Urban Street Design Guide, standard that is freely available on the Internet and can also be purchased in hardcopy. The Urban Street Design Guide has an important focus on city street design that complements and supplements AASHTO’s Policy on Geometric Design of Highways and Streets.

Ms. Miller has published over 100 articles about transportation and planning issues to online news organizations, and has served as a policy advisor and fellow to city, county, and state governments in California.

Ralph Nader is a consumer advocate, lawyer, and author. He has founded many consumer organizations including the Center for Study of Responsive Law, the Public Interest Research Group (PIRG), the Center for Auto Safety, Public Citizen, Clean Water Action Project, the Disability Rights Center, the Pension Rights Center, the Project for Corporate Responsibility and The Multinational Monitor (a monthly magazine). Nader's pioneering, sustained research and advocacy on auto and highway safety, including his landmark book Unsafe At Any Speed, have led to major legislative and administrative reforms, and advances in safety.

The Center for Auto Safety is a non-profit organization founded in 1970 by Consumers Union and Ralph Nader to provide consumers a voice for auto safety and quality in Washington. CAS has made major contributions to accomplishments including: Lemon laws in every state to make it as easy to take back a defective car as a defective toaster; recall of the infamous Ford Pinto for exploding gas tanks and the Firestone 500 tire for tread separation; exposure of GM Firebomb pickups with side saddle gas tanks that have burned to death over 1,000 people; state laws to force disclosure of secret warranties on cars that can save consumers billions of dollars each year; and safety and highway standards that have dropped the death rate on America's road from 5.2 per 100 million vehicles mile traveled in 1969 to 1.1 in 2010. CAS also has achieved numerous legal victories that have saved vital consumer, safety and environmental laws under assault by industry. CAS has regularly participated in legislative and rulemaking processes of and challenged rules from FHWA and NHTSA.

Drawing on the organization’s extensive expertise in auto and highway safety issues, CAS has carefully evaluated legislation and rules in an effort to improve safety. But CAS’s capacity to analyze and offer improvements to proposed and final rules has long been hindered by agency practice to incorporate by reference public safety standards that are only readable for a fee and that, collectively, are too expensive for CAS to purchase. That is, again, the case here with respect to the instant NPRM.

5. Affected Parties and the Public Interest

In addition to Public Resource and the co-signatories this comment, a wide range of entities have an interest in shaping, understanding, evaluating, and monitoring compliance with the FHWA rules:

• The federal regulations are adopted and enforced by state officials as a matter of law, and those requirements in turn flow down to city and county officials charged with the construction and maintenance of roads.
• The design of highways goes far beyond the specialized purview of transportation officials in government. Elected officials and their staff members, procurement professionals, city and regional planners, school officials, and many others in government must deal with the issues raised by our transportation networks.
• The design of highways is an area of government that has long had great interest for citizens, who participate actively and vocally in the planning process. No major construction project is ever approved without public hearings, and even subjects such as the erection of a stop sign or fixing of a pot hole gain can be the subject of vigorous public debate. Media organizations also have an interest in understanding these issues and explaining them to the public.
• A large number of organizations take an interest in the overall development of our cities, rural areas, and regional governments. From Chambers of Commerce to bicycle advocacy groups, these organizations all have great interest in our transportation network and how that network will enable or retard their goals, be they bicycle paths or the creation of new factories.

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 all of 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 the design of highways is very much a matter of public concern, the FHWA 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.

Recent history in this area makes clear that such a position is wholly unwarranted.

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.[7] 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.”[8] 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.

In this regard, we are in strong agreement with a 2012 comment to the Department of Transportation’s 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.[9] 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.

6. AASHTO and the Public Interest

AASHTO is no ordinary nonprofit organization. It is the association of transportation departments in the 50 states, the District of Columbia, and Puerto Rico, charged with creating an efficient and innovative transportation system. The organization has a clear public service mission and proudly proclaims “We Work For You. We Work For the Public.”[10]

One of the core strategic goals of AASHTO is to “be a leader in national transportation policy development.”[11] This includes a protracted and deliberate participation in FHWA and other Department of Transportation regulatory initiatives. When AASHTO is successful in this advocacy, it counts that as among its most significant accomplishments. In the celebration of AASHTO’s centennial, pride of place among the milestones is the incorporation by reference in the 1966 Highway Safety Act of AASHTO’s Manual on Street Traffic Signs, Signals and Markings (MUTCD).[12]

The MUTCD is an example of the extremely close cooperation between AASHTO and the FHWA. The MUTCD is officially published by the FHWA as a federal rule in 23 CFR 655, Subpart F. All states must adopt the 2009 national MUTCD as their legal state standard for traffic control devices. [13] Although officially written by the FHWA, the government directs readers wishing a print edition to the AASHTO web site, where it is available for $60.

Despite the fact that AASHTO prints and sells this document, the FHWA is very clear that it “can only be revised through the formal Federal rulemaking process.”[14] Yet, when the FHWA tried to impose a unilateral change to the 2009 text, the AASHTO board protested vigorously and the FHWA backed off.[15]

AASHTO is a large organization by the standards of nonprofits. In 2014, total revenue was $73,579,156, which included $6,033,898 in government grants. Additional revenue streams included $54,581,805 in technical services, $2,989,135 in meeting registration fees, and $2,588,434 in membership dues. [16] The technical services are extensive and include a materials testing program, radio frequency coordination, a strategic highway research program, and many other useful services.

The large revenue streams that AASHTO enjoys are largely because of the key role that AASHTO plays in helping establish our national transportation policies. Documents such as the Green Book are meant to become law at the federal level and in all 50 states. They are not products, they are the key definitions of our national transportation regulations, definitions which AASHTO helped establish and has lobbied vigorously to have enacted into law.

On top of that enviable position as a key creator of national transportation regulations, a position officially endorsed in the Code of Federal Regulations, AASHTO is able to build a large number of important income streams. Even the law itself can be a potential product, as AASHTO is uniquely positioned to create handbooks, commentary, redlines, and other definitive guides to the law from its position of authority.

Just as AASHTO enjoys many lucrative revenue streams that stem from its creation of key portions of transportation law, the FHWA makes extensive use of AASHTO key documents. For example, dozens of courses at the National Highway Institute use AASHTO documents as their key texts.[17] These courses are valuable training for transportation officials across the country and build on top of key documents, some of which are incorporated into law.

The relationship between the FHWA and AASHTO is a strong one. As the NPRM states:

The Secretary of Transportation is an ex-officio member, and DOT staff participates in various AASHTO activities as nonvoting representatives. Among other functions, AASHTO develops and issues standards, specifications, policies, guides and related materials for use by the States for highway projects. Many of the standards specifications that were approved by FHWA and incorporated into 23 CFR part 625 were developed and issued by AASHTO. 80 FR 31328

We do not begrudge AASHTO, or the FHWA, one cent of the revenues they derive from their expertise and long history of service in the field of transportation. However, it is not necessary to derive those revenues at the expense of public safety and of that basic principle that the law is owned by the people, who have a right to freely read and speak it. Any documents that are not the law, be they journals of research or value-added products that elaborate on the law, are the moral and practical choice of AASHTO on how they will distribute those products. But, the law itself cannot be a protected revenue stream that can only be spoken with a license and under stringent conditions imposed by a private party.

7. 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 FHWA 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. As is the case with the instant proposed rule, 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. [18]

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 NPRM’s assertion that the incorporated standards are available for inspection at the National Archives and the FHWA offices 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 FHWA 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 FHWA making clear that its obligations would not be satisfied by AASHTO and AWS continuing to make its standards available only for a fee, and only with the kind of restrictions on access and use described above, 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.[19] 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, which became effective on January 6, 2015, does not in any respect bar the FHWA (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 FHWA should act here to do just that.

FHWA’s NPRM is contrary to law for the additional reason that it fails to meet new specific requirements imposed on agencies by the new OFR rule.

The OFR rule, effective January 6, 2015, requires agencies to:

1. 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).
2. The OFR rule imposes similar requirements in the final rule.
   1 CFR § 51.5(b).

The NPRM appears simply to assume that the incorporated standards are reasonably available because “interested parties” are “primarily State DOTs and local agencies”; because copies are available for inspection in Washington DC reading rooms; and because AASHTO and AWS offer the standards for sale, at high prices. As discussed above, this access is far from adequate to make the standards reasonably available to the public. Nor does the NPRM discuss the actions that the FHWA took to ensure that the incorporated materials are more reasonably available to interested parties. And nor does the NPRM provide any significant summary of the contents of the standards it proposes to incorporate, as the new OFR rule also requires.

Furthermore, while the FHWA gave a passing nod to the requirement to discuss “reasonable availability,” in preparation for submission of this comment, we submitted a Freedom of Information act request asking for records of the discussions with AASHTO and AWS of how it worked to make those materials reasonably available.[20] The answer from the FHWA was telling: “In preparing the NPRM, we did not exchange correspondence with AASHTO or AWS on making the standards available for public viewing.”[21]

Although compliance with these new provisions would not be sufficient to correct the fundamental flaw in the FHWA’s decision-making here—the failure to make its regulations reasonably available—the lack of compliance with the OFR rule is further evidence of the FHWA’s disregard of its duties.

Similarly, the NPRM’s failure to provide access to the text of the incorporated standard violates the provisions of the Administrative Procedure Act that require agencies to give people an opportunity to comment on proposed rule making. The APA requires that an NPRM include “either the terms or substance of the proposed rule or a description of the subjects or issues involved.” 5 U.S.C. § 553(b)(3). The bare-bones discussions of the standards to be incorporated by reference into the instant rule do not meet this agency.

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

As discussed in greater detail in Public Resource’s comment in OMB Request for Information 2012–7602,[22] 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 FHWA to make these standards part of binding United States law without providing a means for citizens to access them without cost or restriction.

8. 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,”[23] 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. [24]

Given these factors, we strongly believe that, if the FHWA 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 FHWA and other agencies to be confident that standards it was considering for IBR approval would indeed be publicly available.

9. Conclusion

The reason advanced in NPRMs such as the present instance is a perception by some government workers that they are under an obligation to “preserve and protect copyright.” We note that the FHWA is in no position to assess copyright assertions, and 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).

Regardless of whether AASHTO and AWS have some copyright interests here, it is important to remember that the purpose of incorporation by reference was not to permit an end run around the clear principle that in the United States the law belongs to the people and somehow allow a private organization to charge for the law and require a license for reuse. It is ironic that the FHWA is using the Incorporation by Reference mechanism as a way of keeping the law under wraps, since the provisions of federal law that permitted this mechanism were part of the landmark 1966 amendments to the Administrative Procedures Act (APA) in a bill entitled “Clarifying and Protecting the Right of the Public to Information.”[25]

Public Resource, the co-signatories to this comment, 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. Public safety 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, the FHWA should re-publish the proposed rule with the standards available freely online, and it should re-open the comment period. The FHWA should not incorporate these materials into any final rule 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 on use.

Sincerely yours,

David Halperin, Of Counsel
Public.Resource.Org

Carl Malamud, President and Founder
Public.Resource.Org

Co-Signatories:

Elizabeth Deakin

Kendra K. Levine

Ruth Miller

Ralph Nader

Center for Auto Safety

10. Notes