The law demands an open rulemaking process and the federal government must improve its procedures for incorporating materials by reference into regulations, ARSA told the National Archives and Records Administration on May 3.

ARSA’s comments were in response to a recent petition requesting changes to the way federal agencies are able to incorporate materials by reference when drafting regulatory mandates. Currently, when drafting a regulation, departments may incorporate by reference (IBR) materials that contain substantive requirements. However, there is no specific requirement that the referenced matter be publically available during the rulemaking process.

As the FAA frequently IBRs important manufacturer service information in draft Airworthiness Directives (ADs), this is an important issue for the aviation maintenance industry. Often, this material is not available to those without a relationship with the manufacturer; essentially “hiding” detailed information, making it all but impossible for all affected persons to comment on proposed rules and leaving those responsible for compliance in the dark until issuance and of a final rule.

“Wholesale adoption of unavailable materials precludes meaningful comment from those affected when an AD is proposed and results in uncertainty about compliance once the rule is issued,” said ARSA Executive Director Sarah MacLeod.

“ARSA believes that documents essential to compliance and enforcement must be available during all phases of the rulemaking process. ARSA’s members are directly responsible for strict compliance with public safety regulations and are in the best position to provide the substantive comments necessary for the agency to fulfill its obligations. But, they cannot provide those comments if they are left in the dark by use of materials that are not readily available,” said MacLeod.

~~~ posted 5/9/12 ~~~

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