It’s key to democracy.
Rosen 16 – former Professor of Law at Georgetown University, Director of the Administrative Law and Regulatory Practice Section at the American Bar Association, J.D. from Harvard Law School.
Jeffrey A. Rosen, “Report to the House of Delegates,” American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-reports/2016_hod_annual_meeting_electronic_report_book1.pdf#page=403
This resolution is a successor to Resolution 106A, which the Section of Administrative Law and Regulatory Practice submitted to the House of Delegates for action at the 2016 Midyear Meeting. That earlier version would have urged Congress to amend the Administrative Procedure Act to require "meaningful free public availability" of all text incorporated by reference into proposed and final substantive rules of general applicability.
However, that resolution elicited objections from several Sections. They asked Administrative Law to withdraw Resolution 106A from the Midyear Meeting agenda and to form an inter-Section task force charged with devising a substitute resolution that could attract broad support within the House. Administrative Law acceded to this request. As a result, a Task Force on Incorporation by Reference, composed of fifteen members from six Sections and one Division, was convened. 1 After extensive discussions, the task force recommended this resolution.
The resolution is intended to advance the general principle that citizens in a democratic society must be able to consult the laws that govern them. A corollary of that principle is that all citizens should have access in full to binding federal regulations. Regulations themselves are published in the Federal Register and are freely available online and at all federal depository libraries. Under present law as implemented, however, affordability problems often undermine the principle of public access with respect to material that has been included in such rules through incorporation by reference (IBR). The legislation proposed in the resolution would provide for a common baseline of availability by requiring agencies to provide an online source at which IBR material in such rules may be consulted without charge. The legislation would also provide for access without charge to material incorporated by reference into proposed rules while those rules are under consideration, so that citizens may comment on those proposals.