The new rules don’t solve.
Strauss 15 – Betts Professor of Law at Columbia Law School and is a Senior Fellow of the Administrative Conference of the United States.
Peter Strauss, “We Decline to Define ‘Reasonably Available’,” The Regulatory Review, 01-26-2015, https://www.theregreview.org/2015/01/26/strauss-reasonably-available/
The new rules thus leave unaddressed a number of important issues. Ordinarily, rulemaking proposals must be attended by the public availability for possible comment of supporting data and studies; the amendments to Part 51 do not address the availability to potential commenters of data or studies supporting a standard proposed to be incorporated. The rules continue to permit incorporation by reference to endure without time limit, despite the predictable impacts of time on both availability and relevance; and they pay no attention to the terms and price at which the adopting private organizations offer the incorporated standards for sale.
That legal obligations may be closely held under copyright, at the price and on such terms as the adopting organization may set, and subject only to the possibility of inspecting one of two copies held in Washington, D.C., offends the general principle that law is not subject to copyright and the observation that “secret law” is the weapon of tyrants.