MARPA recently responded to a request for comments from the Office of the Federal Register (OFR) regarding a petition about their policy on Incorporation by Reference. The petition sought to define what it means for incorporated material to be “reasonably available” to the public. MARPA’s comments supported the petitioner’s suggestion that incorporated material that is a mandatory part of the regulations should be available for free over the internet, just like the rest of the regulations. MARPA explained both the legal and practical reasons for this policy position.
Materials incorporated by reference are familiar to MARPA members. Examples of such materials include manufacturer’s service bulletins referenced in Airworthiness Directives. When these materials are incorporated by reference, they become a required aspect of the regulation into which they are incorporated.
The regulations on material incorporated by reference requires those materials be reasonably available to people affected by them, but the regulations don’t define “reasonably available.” In the days before the internet, materials were incorporated by reference in order to keep the down the physical size of the regulations when they were printed. The incorporated materials were separate. It was therefore “reasonable” to pass along some of the production cost of those incorporated materials to consumers. With the advent of the internet, space concerns and production costs are no longer an issue—therefore the reasonable concept of “reasonably available” has changed.
MARPA suggested that in order to consider a mandatory requirement “reasonably available,” it must be available for free via the internet and the agency’s public docket, just as the rest of the regulations are available. Agencies are in a position to bargain hard for licensing fees for incorporated standards, or they may elect to develop their own materials (instead of incorporating the referenced standard) if the cost is too high. The cost of incorporating these materials into mandatory regulations should be covered by our tax burden, just as the cost of developing regulations is a part of tax burden.
In addition to incorporated standards, though, there are also private materials that are incorporated by reference in the form of manufacturer’s service bulletins. Private materials that are incorporated by reference in ADs are generally required to be produced as a condition of the continued viability of the FAA-issued design approval. Thus, manufacturers who would purport to assert a copyright to prohibit the FAA from publishing the incorporated materials may always choose to surrender the FAA design approval, since Airworthiness Directives are only issued as a corrective action for situations where a safety issue would otherwise invalidate the approval. This undermines design approval holder arguments claiming a proprietary right that might preclude such publication.
MARPA also observed that the costs associated with paying a fee to know the full scope of regulations will disproportionally affect small businesses and individuals, and could have the effect of driving such competitors out of the market based o their inability to comply with “secret” laws, when the incorporated materials are unavailable to the public. Such “secret” laws violated fundamental notions of due process..
You can read MARPA’s full comments online.