ASA Fights Against “Secret” Regulations

ASA filed comments with the U.S. Office of the Federal Register (OFR) to support a petition about the U.S. policy on materials that are Incorporated by Reference in U.S. regulations.  A key element of discussion was the notion of what does it mean to be “reasonably available” to the public (incorporated materials are required to be made reasonably available so people can know what the law is).  A scholar from the Administrative Conference of the United States (ACUS) had petitioned to have the term “reasonably available” defined to mean that the material that is incorporated is made available on the same pubic terms as the rest of the regulations.  ASA’s comments supported the 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 are made available.

Materials incorporated by reference are familiar to ASA members.  Examples of such materials include standards like the ICAO Technical Instructions for the Safe Transportation of Dangerous Goods (published as the IATA Dangerous Goods Regulations).  It also includes aviation manufacturers’ instructions that are incorporated by reference in the FAA’s regulations (e.g. 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.

ASA 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.  Agencies are in a position to bargain hard for licensing fees, or elect to develop their own materials if the cost is too high.  In some cases, the standard an agency seeks to incorporate may already be available for free.  For instance, ASA’s ASA-100 quality standard is available for free download (and is incorporated by reference in FAA AC 00-56).  The cost of incorporating these materials into mandatory regulations should be covered by our tax burden.

ASA 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 ASA’s full comments online.

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About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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