New rules 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/
At issue in the recent OFR rulemaking was the continued practice of permitting the adoption of these incorporated-by-reference standards as legally binding regulatory requirements through a rulemaking process that leaves access to proposed standard and any supporting materials in the hands of the private organizations creating it. This effectively constrains access to the incorporated standards to two printed copies kept in Washington, D.C., or to such copies as the responsible private organization might provide – at the price and on such terms as it may set.
The OFR’s new rules, largely building on the ACUS recommendations, improve on their predecessors in a number of respects. At the rulemaking proposal stage, the new rules require an agency to discuss in the proposal’s preamble the (undefined!) reasonable availability of either “the materials it proposes to incorporate by reference” or its efforts to secure reasonable availability; and, also, to provide a summary of that material.