A bright light on the rulemaking process benefits all business
A coalition of law professors filed a petition with the National Archives and Record Administration (NARA) to request an update to guidelines permitting the incorporation of materials by reference in the federal rulemaking process.
Agencies such as the FAA often incorporate by reference (IBR) information critical to understanding and complying with a mandate. In the case of the FAA, wholesale adoption of commercially-developed service instructions that are not readily available are commonly incorporated by reference in airworthiness directives and other rules. This process can shut many interested parties out of the rulemaking process.
To resolve this situation, any information essential to compliance and enforcement must be made available to persons impacted directly by a proposed rule. The basic information, whether incorporated by reference or published in the federal register, should be made available free of charge, most logically by posting it online. In other words, if the agency is going to use the IBR information when enforcing its rule, it must be made available and without exceptions.
The ability to IBR allows agencies to mandate a standard merely by reference, and thus avoid having to publish it in the code of federal regulations (CFR). The rule authorizing incorporation by reference only requires that the materials be “reasonably available of the class of persons affected” (see 1 CFR § 51).
The regulations do not specifically define reasonable availability; the regulations authorizing incorporation by reference have not been updated since 1982, well before the dawn of the Internet. The petition asks NARA to define “reasonably available” in light of 21st-century technological standards. “Reasonable availability of mandatory standards in the age of the Internet requires their ready availability in agency electronic reading rooms, or at the very least, in linked Web sites . . . that provide at least free read-only access to those with a need to know the law governing their conduct,” the petitioners state.
Airworthiness directives and IBR
The shortcomings of IBR are well illustrated in airworthiness directives (ADs). Rather than include certain service documents on which it bases its findings and rationale when proposing a legally enforceable AD, the FAA will often simply choose to incorporate a particular document by reference. The resulting corrective actions advocated by the FAA and legally mandated by the rule are therefore wholly contained in the manufacturer’s service instructions.
While an AD should only mandate inspections, conditions and limitations, and any actions that must be taken to resolve unsafe conditions before operating an aircraft, documents that are IBR include unrelated tasks and information. Since FAA certificate holders must adhere strictly to the instructions contained in the referenced material or obtain FAA approval for an alternative means of compliance, confusion arises over what actions in the material IBR the AD actually requires. The issue is particularly problematic when material IBR contains references incorporating additional documents or entire manuals.
Today, it is commonplace for manufacturer service information IBR in a proposed AD to be unavailable for persons without a commercial relationship with the manufacturer, even though they may be intimately involved with the manufacturer’s products. IBR therefore creates a “secret science,” resulting in the “hiding” of essential information. This makes it all but impossible for all affected persons to comment on proposed rules, and leaves those responsible for compliance in the dark until issuance of a final rule.
As a result, it becomes a colossally difficult task for either the regulated person or agency to truly establish compliance with the safety mandate. There is no clear frame of reference to specifically outline the rule’s requirements. If the documents were available during the comment period, those required to comply could examine the documents and make recommendations to improve application of the rule, thereby improving compliance and eliminating confusion.
A simple solution
Clearly, the ability to IBR materials essential to rulemaking and compliance runs counter to the government’s requirement for agencies to ensure all affected parties have an opportunity to view and provide comments to proposed rules. Fortunately, a simple solution exists to address this dilemma: publish information essential to compliance and enforcement online for free.
The solution is not novel. Indeed, Congress, in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, required that the Pipeline and Hazardous Materials Safety Administration make “any document incorporated by reference available to the public, free of charge, on an Internet Web site.” It would make sense for the FAA and other federal agencies to follow that requirement.
Currently, some information used in rulemaking is only available by purchase from the commercial provider, or by reviewing the rulemaking docket in person at the Office of the Federal Register in Washington, D.C. Certainly attaching such matter to the docket electronically and making the material available through a federal Web site would bridge the information divide.
Given the tremendous advances in technology, placing the information on a government Web site would ensure that the “class of persons affected” by a regulation would have access to the material with which they must comply. Since the Administrative Procedure Act requires the government to ensure any person impacted by a regulation has an opportunity to review and provide substantive comments, online availability would achieve this goal without having to provide a one-size-fits all definition to the “class” affected by the proposed regulation.
Furthermore, any governmental attempt to rework the definition of reasonable availability regarding materials that are IBR must recognize the legal obligation to produce clear and unambiguous rules. If the FAA has determined that an AD is necessary to address a safety concern, it would make sense that anyone required to comply with the mandate have access to the information guiding the agency’s determination. If an agency determines that it is necessary to IBR, then that agency must bear the burden of making that information available publicly and free of charge. If the agency itself lacks ready access to the IBR material, then it should not be determined essential to compliance or enforcement.
On May 3, 2012, the Aeronautical Repair Station Association (ARSA) filed comments strongly supporting the petition using the aforementioned arguments in advocating shining a bright light on the federal rulemaking process. Improving the availability of documents IBR will help all businesses improve compliance and not be left in the dark when the final rule sets forth new mandates.
Sarah MacLeod is executive director of ARSA, an organization she helped found more than 25 years ago. She is a managing member at the law firm of Obadal, Filler, MacLeod, and Klein, and is engaged in the legal representation of foreign and domestic air carriers, aircraft maintenance and alteration facilities, distributors, pilots, and others in federal court and before federal administrative bodies. She serves as assistant chair for Air Carrier and General Aviation Maintenance of the FAA’s Aviation Rulemaking Advisory Committee, a post she has held since 1996. A globally-recognized expert in aviation regulatory compliance and a sought-after speaker, MacLeod has appeared at many aviation and MRO events. She is admitted to the bar in Virginia.