We Decline to Define ‘Reasonably Available’

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The new amendment to incorporation by reference rules leaves important issues unaddressed.

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“We decline to define ‘reasonably available’” is perhaps the most remarkable sentence to appear in the Office of the Federal Register’s (OFR) recent amendments to Part 51 of its rules, on incorporation by reference.

These amendments, which appeared in the Federal Register a little over two months ago, govern the Office’s performance of its responsibilities under 5 U.S.C. 552(a)(1), a statute which provides that for regulatory requirements whose full operative text would otherwise have to be published in the Federal Register, “matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.”

Readers of The Regulatory Review may recall earlier discussions of events leading up to this amendment, including the Administrative Conference of the United States’ (ACUS) recommendations of December, 2011, concerning incorporation by reference practice; a rulemaking petition I then filed with others to encourage the Director to remedy perceived deficiencies in Part 51 and their administration that ACUS had not addressed; and the OFR’s October, 2013, issuance of a proposed rule. (Revision of OIRA’s guidance to agencies about incorporation by reference practice is also under consideration, but has not yet been issued.)

As relevant here, incorporation by reference is used by regulatory agencies to adopt, as legally binding regulations, industrial standards that have been developed by private bodies such as the International Standards Organization, the American Society of Mechanical Engineers, and the American Petroleum Institute. Roughly 10,000 such standards-made-law currently reside in the Code of Federal Regulations (CFR). They are identified therein simply by the citation the responsible organization may have created for them; about two-thirds of these standards-made-law are 20 years or more old; almost all have been superseded as organizational standards without subsequent incorporation by reference of their revised formulations.

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.

To receive formal approval for incorporation by reference, the rulemaking preamble must, again, summarize the material incorporated, and it must also “discuss … the ways that the [incorporated] materials … are reasonably available to interested parties and how [they] can obtain the materials.” However, this informative preambular discussion does not carry forward into the CFR, where only a citation to the incorporated standard will be available in the rule as published there.

That the OFR will not itself perform the obligation imposed on it by section 552(a) of the Freedom of Information Act, to determine if an incorporated standard is “reasonably available,” is given emphasis by section 51.7(a) of its new rule, defining what publications are eligible for incorporation:

A publication is eligible for incorporation by reference under 5 U.S.C. 552(a) if it … (3) Is reasonably available to and usable by the class of persons affected. In determining whether a publication is usable, the Director will consider [its qualities as a print document].” (Emphasis added)

Note that this language does not define “whether a publication is reasonably available.” After repeatedly citing resource constraints, the preamble to OFR’s new rule had stated “We decline to define ‘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.

As the justification for its refusal to take its statutory responsibilities more seriously, the OFR repeatedly remarks in its statement of basis and purpose that its resources are extremely limited. Indeed, they are – but the affront to its institutional commitment to serve as the nation’s source of regulatory law is nonetheless clear. Congress enacted section 552(a)(1)’s permission to incorporate standards by reference as fixed regulatory obligations when the Web did not exist, as a defense against further expansion of the print Federal Register and CFR. At the time, it anticipated that commercial publishing houses, not standards organizations, would serve as the source for standards’ governing texts.

That rationale no longer serves. Agency electronic libraries are obvious possible repositories for materials incorporated by reference; yet the OFR, defending the copyright of law, refused the suggestion that, in the current day, those libraries are the appropriate repositories for incorporated matter.

There’s reason to hope that some of these issues will be addressed by others. In proposing incorporations, agencies may be motivated by their own obligations to obtain supporting data and studies and make them public for comment. The American National Standards Institute (ANSI) and other standards organizations have been moving toward assuring public read-only access to standards at least during comment periods and, to a lesser degree, after final incorporation. Standards organizations should find themselves motivated to coordinate important revisions they may have made to their incorporated standards with the retrospective review programs presidential executive orders have repeatedly required agencies to adopt. (ANSI ordinarily requires reconsideration of a standard no less often than every five years, and, at present, incorporated standards endure as legal obligations much longer than that.) The materials incorporated from standards are often but a small fraction of the standards themselves (e.g., the definition of a “dent” that makes a hazardous materials transporter unsafe for continued use may be incorporated from an extensive standards “code”); one hears indications of increasing willingness on the part of standards organizations to have those fractions made public without charge on “fair use” principles.

Could judicial review of the OFR’s new rule be obtained? Who would have standing? Are the issues ripe, or too abstract? Here are puzzles worthy of a law school examination. If successfully obtaining review seems unlikely, consider that years ago John Cervase, provoking the judicial distaste for secret law, persuaded two judges of the United States Court of Appeals for the Third Circuit that the OFR must create an actual index for the CFR – which then was a print-only document. Indexing the CFR has since been automated by its incorporation into the Worldwide Web. And the Web’s existence and power have also eliminated the principal rationale for Congress’ enactment of section 552(a)(1), the statutory provision Part 51 and the OFR’s new amendment to it purport to implement.

Stay tuned.

This essay is part of a three-part series, Incorporating Private Standards into Public Regulations.

Peter L. Strauss

Peter L. Strauss is the Betts Professor of Law at Columbia Law School and is a Senior Fellow of the Administrative Conference of the United States.