Down deep in the plumbing of state government is a device that allows private codes and standards to be made enforceable. It’s a curious little feature called “incorporation by reference.” It isn’t used much, but if a New Mexico state agency wants to enforce, say, some group’s copyrighted technical standards, it can do it.
But enforcing copyrighted codes can be problematic, and that’s why state law requires safeguards. It’s unclear exactly how many private standards are referenced in state law and the practice is prone to abuse.
The legislative branch will sometimes authorize a private code in a statute, and then agency employees in the executive branch will draft a regulation defining how it will be enforced. To be enforceable by the executive branch, it must go through a rulemaking process that includes steps such as proclamation in the state register, a notice-and-comment period, a public hearing, a cost-benefit analysis and an analysis of how the regulation might affect small business.
It’s unclear exactly how many private codes and standards have been embedded in state law. No one seems to keep count. And it’s prone to abuse.
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