New changes solve problems with incorporation by reference.

Administrative Conference of the United States, “Administrative Conference Recommendation 2011-5,” Administrative Conference of the United States, 12-08-2011, https://www.acus.gov/sites/default/files/Recommendation-2011-5-Incorporation-by-Reference_0.pdf

Updating Regulations. Updating regulations that incorporate by reference is another challenge. Agencies are legally required to identify the specific version of material incorporated by reference and are prohibited from incorporating material dynamically.6 When an updated version of the incorporated material becomes available, the regulation must be updated if the agency wants the regulation to incorporate the new version. This can require the agency to engage in notice-and-comment rulemaking, which entails a significant investment of agency resources. For agencies that are statutorily required to provide rulemaking procedures beyond those required by Section 553 of the Administrative Procedure Act (APA), updating may prove to be an immense challenge. Nonetheless, agencies have successfully used a variety of techniques to reduce the time and cost constraints of updating rules. Some agencies have used enforcement discretion or “equivalency determinations” to avoid penalizing parties that comply with an updated version of an incorporated standard that the agency finds to be equivalent to or superior to the version still incorporated in the agency’s regulations. Other agencies have reduced the burden of updating by tracking forthcoming revisions through participation in standard-development activities.7 Still others have used direct final rulemaking to reduce the costs of updating an incorporating regulation. The recommendation encourages these timeand cost-saving techniques. This recommendation also proposes a statutory solution that would streamline the administrative process by which agencies can revise their regulations to account for updates to the incorporated material.