INCORPORATION BY REFERENCE: INCLUSION OF CONSENSUS STANDARDS IN PUBLIC LAW AND COPING WITH A MOVING TARGET

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1 INCORPORATION BY REFERENCE: INCLUSION OF CONSENSUS STANDARDS IN PUBLIC LAW AND COPING WITH A MOVING TARGET Clark Silcox General Counsel, National Electrical Manufacturers Association ABA Section on Administrative Law and Regulatory Practice November 18, 2011

2 CONGRESS LEADS BY EXAMPLE, THEN CODIFIES Example: The Energy Policy and Conservation Act, (42 U.S.C )(Appliance/Equipment Efficiency Standards) EPA Energy Star test procedures and standards also incorporated by reference in this statute.

3 NATIONAL TECHNOLOGY TRANSFER ACT 15 USC 272, NOTE (1) In general.--except as provided in paragraph (3) of this subsection, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. (2) Consultation; participation.--in carrying out paragraph (1) of this subsection, Federal agencies and departments shall consult with voluntary, private sector, consensus standards bodies and shall, when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources, participate with such bodies in the development of technical standards.

4 NATIONAL TECHNOLOGY TRANSFER ACT 15 USC 272, NOTE (3) Exception.--If compliance with paragraph (1) of this subsection is inconsistent with applicable law or otherwise impractical, a Federal agency or department may elect to use technical standards that are not developed or adopted by voluntary consensus standards bodies if the head of each such agency or department transmits to the Office of Management and Budget an explanation of the reasons for using such standards. Each year, beginning with fiscal year 1997, the Office of Management and Budget shall transmit to Congress and its committees a report summarizing all explanations received in the preceding year under this paragraph. (4) Expenses of Government personnel.--section 5946 of title 5, United States Code, shall not apply with respect to any activity of an employee of a Federal agency or department that is determined by the head of that agency or department as being an activity undertaken in carrying out this subsection. (5) Definition of technical standards.--as used in this subsection, the term technical standards means performance-based or design-specific technical specifications and related management systems practices.

5 EXECUTIVE BRANCH FORMULATED POLICY FIRST FOR THE AGENCIES OMB CIRCULAR A-119 FIRST PUBLISHED 1980, 45 FED.REG REVISED: 1982, 47 FED.REG 49496; 1993, 58 FED.REG CURRENT: 1998, 63 FED.REG (to conform to 1995 NTTA) This Circular establishes policies to improve the internal management of the Executive Branch. Consistent with Section 12(d) of P.L , the "National Technology Transfer and Advancement Act of 1995" (hereinafter "the Act"), this Circular directs agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. It also provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in the Act. The policies in this Circular are intended to reduce to a minimum the reliance by agencies on government-unique standards.

6 OMB CIRCULAR A-119 a. For purposes of this policy, "voluntary consensus standards" are standards developed or adopted by voluntary consensus standards bodies, both domestic and international. These standards include provisions requiring that owners of relevant intellectual property have agreed to make that intellectual property available on a nondiscriminatory, royalty-free or reasonable royalty basis to all interested parties. For purposes of this Circular, "technical standards that are developed or adopted by voluntary consensus standard bodies" is an equivalent term.

7 OMB CIRCULAR A-119 (1) "Voluntary consensus standards bodies" are domestic or international organizations which plan, develop, establish, or coordinate voluntary consensus standards using agreedupon procedures. For purposes of this Circular, "voluntary, private sector, consensus standards bodies," as cited in Act, is an equivalent term. The Act and the Circular encourage the participation of federal representatives in these bodies to increase the likelihood that the standards they develop will meet both public and private sector needs. A voluntary consensus standards body is defined by the following attributes: (i) Openness. (ii) Balance of interest. (iii) Due process. (vi) An appeals process. (v) Consensus, which is defined as general agreement, but not necessarily unanimity, and includes a process for attempting to resolve objections by interested parties, as long as all comments have been fairly considered, each objector is advised of the disposition of his or her objection(s) and the reasons why, and the consensus body members are given an opportunity to change their votes after reviewing the comments.

8 VOLUNTARY CONSENSUS STANDARDS BODIES These terms and the terms used to describe them were not pulled out of a hat. These terms are adapted from the American National Standards Institute s (ANSI) Essential Requirements for an American National Standard rican%20national%20standards/procedures,%20guides,%20and%20forms/ 2010%20ANSI%20Essential%20Requirements%20and%20Related/2010%2 0ANSI%20Essential%20Requirements.pdf It is not surprising that nearly all the standards referenced in the Energy Policy and Conservation Act on the first slide are ANSI Standards.

9 ANSI S FIVE YEAR REVIEW REQUIREMENT Periodic maintenance of American National Standards Periodic maintenance is defined as the maintenance of a standard by review of the entire document and action to revise or reaffirm it on a schedule not to exceed five years from the date of its approval as an American National Standard....the standards developer may request an extension of time to reaffirm or revise the standard... No extension of time beyond ten years from the date of approval shall be granted for action on a standard. In no case shall a standard maintained under the periodic maintenance option retain its status as a current American National Standard beyond ten years from the date of approval. Such approval automatically expires on the tenth anniversary date of approval as an American National Standard.

10 THE LEGISLATURE OR THE AGENCY DOES NOT ALWAYS HAVE A MANDATORY REVIEW REQUIREMENT Standards incorporated by reference can get stale. Case in Point: 29 CFR (Accident Prevention Signs and Tags) adopted in OSHA incorporates by reference ANSI Z and ANSI Z35.1- and Z : (i) Additional rules. American National Standards Institute (ANSI) Z , Specifications for Accident Prevention Signs, and Z , Specifications for Accident Prevention Tags, contain rules which are additional to the rules prescribed in this section. The employer shall comply with ANSI Z and Z with respect to rules not specifically prescribed in this subpart. ANSI Z53 and ANSI Z35 were replaced by the ANSI Z535 series of safety sign standards in 1992, which have been revised several times since then. The Z535 standards set out the formats of safety signs and labels, and contain principles for safety messages. The ANSI Z535 Committee reflects a wide variety and balance of interests. The Government participated in the early years. NIST was the original secretariat; NEMA replaced NIST at some point.

11 THE OLD FORMAT The 1968 standards introduced the three signal words, an associated color code, and a statement about the hazard.

12 THE NEW FORMAT

13 BELIEVE IT OR NOT There are some employers who have been written up by OSHA for de minimis violations of 29 CFR because of variances from the old Z53 and Z35 standards. De Minimis Violation - De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation. While de minimis, it carries a stigma. The ancient references to Z35 and Z53 standards deter some from conforming to current standards in facility signs and safety labels. Dilemma whipsaws those with product liability concerns, fearful they will be second-guessed for not conforming to most recent version of standard.

14 BELIEVE IT OR NOT

15 SHOULD OSHA UPDATE? What are the costs if the rule is amended? Would workplaces have to relabel older machinery that came with older versions of labels? Would workplaces have to replace older versions of facility signs? Most newer workplace equipment probably uses more modern versions of signs. How many workplaces? How many signs and labels. What are the benefits? Standardized education of workforce. Label content: pictorials to deal with multilingual issues; statements of how to avoid risk of harm.

16 OSHA S PPE RULE 29 CFR , Rulemakings expensive; Direct Final Rule process probably not available here if there is any opposition. 74 Fed.Reg (Sept 9, 2009)(OSHA updates personnel protective equipment standards by incorporating updated ANSI standards and option for establishing equivalency; will consider Direct Final Rule approach in future to update). OSHA revised the text of the final rules to allow employers to meet the design requirements of its PPE standards by using PPE constructed in accordance with any of three national consensus standards--the two most recent national consensus standards and the national consensus standard incorporated in the current OSHA standards. Additionally, the final rules maintain the option employers currently have to use PPE that is not manufactured in accordance with one of the listed consensus standards if the employer can demonstrate that the PPE it selects is as protective as PPE constructed in accordance with one of the incorporated consensus standards. The final regulatory text responds to the numerous requests that OSHA continue to incorporate, and require compliance with, specific national consensus standards.

17 WHAT ARE OSHA S OPTIONS? Issue Guidance to regulated community. ACUS recommends using rulemakings for definitive agency statutory interpretations rather than policy statements. Equivalency determinations Coast Guard. 46 CFR (c)( An item of equipment or material that does not meet all of the requirements of this subchapter for design or performance may be approved by the Commandant if it has equivalent performance characteristics. The item has equivalent performance characteristics if the application and any approval tests prescribed by the Commandant, in place of or in addition to the approval tests required by this subchapter, demonstrate to the satisfaction of the Commandant that the item is at least as effective as one that meets the requirements of this subchapter. ). Enforcement discretion

18 SOMETIMES CONGRESS COMPELS REVIEW IF STANDARD UPDATED The Energy Policy and Conservation Act again (42 USC 6295(k)) (3)(A) If the maximum flush volume requirements of ASME Standard A are amended to improve the efficiency of water use of any low consumption water closet or low consumption urinal and are approved by ANSI, the Secretary [of Energy] shall, not later than 12 months after the date of such amendment, publish a final rule establishing an amended uniform national standard for that product at the level specified in amended ASME/ANSI Standard A and providing that such standard shall apply to products manufactured after a date which is one year after the publication of such rule, unless the Secretary determines, by rule published in the Federal Register, that adoption of a uniform national standard at the level specified in such amended ASME/ANSI Standard A (i) is not technologically feasible and economically justified under subsection (o) of this section; (ii) is not consistent with the maintenance of public health and safety; or (iii) is not consistent with the purposes of this chapter.

19 A SIMILAR PARAGRAPH FOR TEST PROCEDURES 42 USC 6314(a)(5): (B) If the test procedure requirements of NEMA Standards Publication MG-1987 and IEEE Standard 112 Test Method B for motor efficiency are amended, the Secretary shall amend the test procedures established by subparagraph (A) to conform to such amended test procedure requirements unless the Secretary determines, by rule, published in the Federal Register and supported by clear and convincing evidence, that to do so would not meet the requirements for test procedures described in paragraphs (2) and (3) of this subsection.

20 AND SOMETIMES THE AGENCY CONCLUDES IT MIGHT BE ABLE TO UPDATE ON ITS OWN For example, 42 USC 6311(G) --- (G) The term small electric motor means a NEMA general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG For greater details, read the majority and dissenting opinions at National Electrical Manufacturers Association v. Department of Energy, ---- F.3d ----, 2011 WL (4 th Cir. 2011).

21 STATUTORY CONSTRUCTION PRINCIPLES NEMA argued that the statute incorporated by reference the MG standard (NEMA Reply Brief at 3-4): This provision specifically incorporates NEMA Standards Publication MG into the statute by reference. The effect of doing so is the same as if MG had been laid out in the statute verbatim. See, e.g., United States v. Myers, 553 F.3d 328, 331 (4th Cir. 2009) ( The general rule is that when one statute adopts a provision of another statute by specific reference, it is as if the adopting statute had itself spelled out the terms of the adopted provision. ), cert. denied, 129 S. Ct (2009); see also 1A Sutherland Statutory Construction 22:25 (7th ed.) ( Incorporation by reference is an appropriate legislative procedure. When a statute adopts the provisions of another statute by specific reference, the effect is as if the referenced statute had been incorporated into the adopting statute. ). Consequently, as here, incorporations by reference of provisions includ[e] their limitations. U.S. Dep t of Energy v. Ohio, 503 U.S. 607, 617 (1992).

22 STATUTORY CONSTRUCTION PRINCIPLES Further, definitions that are incorporated by reference into a statute are not limited to definitions that reside in another statute; nothing prevents Congress... from incorporating by reference any definition [it] choose[s]. United States v. Roberts, 442 F.3d 128, 130 (2d Cir. 2006); see, e.g., Dias v. City & County of Denver, 567 F.3d 1169, 1174 n.2 (10th Cir. 2009) (recognizing and relying on kennel club standards incorporated by reference into city ordinance prohibiting keeping of pit bulls within city limits). NEMA Reply Brief at 4. The majority never mentioned the incorporation by reference doctrine. The dissent concluded: By referring to MG in the statute, Congress incorporated the publication in its entirety, including the ratings and standards which defined small motors. Thus, Congress intended to grant DOE authority only to regulate small electric motors, which in 1992 Congress and NEMA understood to be motors of one horsepower or less. FN7 In fact, the congressionally incorporated publication MG contains no reference directly or indirectly to small motors greater than one horsepower. Slip Opinion at

23 ARGUMENTS TO DOE DURING THE RULEMAKING (G) The term small electric motor means a NEMA general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG The specific reference to the 1987 version of the standard only applied to the clause after the comma; While the first reference to NEMA in the first clause is also a reference to the standard (the reference to NEMA general purpose motor derives its meaning only from the MG1 standard), it is not limited to the 1987 version of the standard. Hence the DOE can recognize the current version of the standard to include motors that were not recognized by MG1 as general purpose motors in DOE declined to accept this view, and concluded it was bound by the 1987 version for this rulemaking, but it might revisit that in a future rulemaking. 75 Fed. Reg , (Mar. 9, 2010).

24 OTHER MATERIALS ABOUT INCORPORATION BY REFERENCE Boswell and Cargas, North American Energy Standards Board: Legal and Administrative Underpinnings of A Consensus Based Organization, 27 Energy Law Journal 147 (2006)(excellent discussion of delegation doctrine, history of OMB Circular, and NTTA) American National Standards Institute, Why Voluntary Consensus Standards Incorporated by Reference into Federal Government Regulations are Copyright Protected. s/critical%20issues/copyright%20on%20standards%20in%20regulations/co pyright%20on%20standards%20in%20regulation.pdf IEC/ISO, Using and referencing ISO and IEC standards for technical regulations (September 2007)