Have you ever been frustrated to learn that an AD went out that references a service bulletin, and (too late!) you later learned that the service bulletin made disparaging remarks or provided inappropriate directions about your company or your parts?
How do you prevent this situation? You need to get a copy of the service bulletin that is cross referenced by the AD, and review it before the AD rule becomes final. But sometimes no one will provide the service bulletin to you!
That just shouldn’t be the case. If an AD might indirectly affect you because of the cross referenced service bulletin, then you should be entitled to review the service bulletin before it becomes part of a regulation.
The U.S. government agrees!!
The U.S. Office of the Federal Register has published a new rule designed to make government rules more transparent. It accomplishes this by addressing incorporation-by-reference.
What is Incorporation-by-Reference?
Incorporation-by-Reference (or IBR) is the term for regulations that make reference to some other document that is not published in the rule. Historically, incorporation-by-reference came about because it cost money to print the Federal Register, and wasting a lot of pages on a standard that could easily be obtained outside of the Federal Register. But today, most people access the regulations and the Federal Register on line, so there is not as much of a burden associated with publishing such documents. Incorporation-by-reference can be an issue for the public because when an incorporated document is merely technically available – but it is not really available – then this can make it difficult or impossible for an affected person to comply with the regulation (and can make it impossible for the affected person to even know that (s)he is subject to the regulation).
In short, unavailable-but-incorporated documents can reflect secret regulations that are impossible to comply with.
With this in mind, the Administrative Conference of the US began to study what could be done to update the rules to reflect modern technology. This ultimately led to the Office of the Federal Register looking into potential changes to the rules on incorporation-by-reference.
Some Problems with Incorporation-by-Reference
The aviation industry faces many challenges related to incorporation-by-reference. An issue that can be very important to MARPA’s members is the availability of referenced documents in Airworthiness Directives(ADs), like service bulletins. Service bulletin language can affect PMA parts, and can even disparage PMA parts in ways that are inappropriate.
Timely availability to the PMA community of these service bulletins can be a serious issue. It is typical for the FAA’s incorporation-by-reference statement to insist that the incorporated service bulletins be obtained either from the FAA office or from the OEM who published the document. In order to test this system, I emailed an FAA office and an OEM who were described as the sources of a service bulletin (the Federal Register listed the emails and listed this as an acceptable way to make contact). The FAA response was that I should go to the OEM. The OEM response was to ask me why I wanted the service bulletin. When I responded that the service bulletin was incorporated by reference in a proposed AD, and I wanted a copy of the service bulletin to determine whether the trade association needed to file comments on behalf of the membership, I received no further communication from the OEM. They just stopped responding to me.
MARPA filed comments on the Advance Notice for this proposal and offered a number of suggestions in 2012. MARPA also participated in face-to-face meetings with the government to discuss ways to improve the current system.
The result was a new rule that clarifies obligations related to regulations that incorporate standards by reference.
What Changes Should You Expect?
It is important that incorporated material be available in proposed rules so that the public can comment on the proposed rule with full knowledge fo the proposed rule’s impact. Under the new standards (1 C.F.R. 51.5(a)), the preamble to a proposed rule must :
- Discuss the agency’s efforts to make the IBR materials reasonably available to interested parties, and
- Summarize the material it proposes to incorporate by reference in the preamble.
When the agency is ready to publish a final rule with an IBR, the agency must do the following (1 C.F.R. 51.5(b)):
- Ask for permission from the Office of the Federal Register to accomplish an IBR,
- Explain in the preamble to the final rule how interested parties can get a copy of the IBRed materials (it must be “reasonably available”), and
- Ensure a copy of the IBRed publication is on file at the Office of the Federal Register.
An important feature of the regulations is the requirement to discuss availability to “interested parties.” This is an expansion of the traditional language, which merely required availability to “the class of persons affected by the publication.” Interested persons should include persons who are indirectly affected (like those whose PMA parts MIGHT be affected in the case of an airworthiness directive) in addition to class of persons directly affected by the publication (which is generally operators).
The regulations continue to explain that IBR is limited to the edition that is incorporated. So if a subsequent revision of a service bulletin comes out, only the version that was approved by the Office of the Federal Register is the version that is IBRed (and not subsequent versions). 1 C.F.R. 51.1(f).
One sad omission was that the new rule does not define “reasonably available.” The Office of Federal Register was worried that a definition might be inappropriate, so they were hesitant to offer a definition, and instead they have left it to a case-by-case analysis as defined by each agency. But it seems certain that if you make a reasonable effort to obtain an IBRed service bulletin using the mechanism in the Federal Register, and you are denied, then you may have a claim that the service bulletin was not reasonably available.
While we did not get every change we requested, this nonetheless represents a good start on the process of providing better transparency in the situations of incorporation-by-reference.