PHMSA Meeting on “Incorporated by Reference”

The Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice in yesterday’s Federal Register (77 FR 37472 -37474) announcing that they would be holding a public workshop on the recent congressional mandate to eliminate the incorporation by reference of voluntary consensus standards. The workshop will be held on July 13, 2012 in Washington, D.C.

Background

Since 1996 agencies of the Federal government have been directed to use voluntary consensus standards “published and adopted by domestic and international organizations, which have collaborated to agree upon best technical practices” instead of trying to develop duplicative standards in-house. This was requirement was adopted to save the government money and to speed the regulatory adoption of new technologies.

The standards developing organizations (SDOs) have spent a great deal of time, effort and money on developing and printing these consensus standards. Since the documents are not produced by the government, they are protected by copyright law and many SDOs recoup their expenses (or portions of their expenses) by selling printed copies or licensing access to on-line copies of these standards.

When these standards, or portions of these standards are incorporated by reference, they become, essentially, part of the regulation; in most instances an enforceable part of the regulations. This requires that the regulated community must acquire copies of these standards to avoid falling afoul of the regulations. Since PHMSA has incorporated all or parts of 60 of these standards into the various pipeline safety regulations, buying or licensing all of the applicable standards could get quite expensive (it would have been nice if PHMSA had included the actual potential cost in this notice).

The Mandate

When the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (PL 112-90) became law early this year it included §24 that prohibited DOT from issuing guidance or regulations that “incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet Web site” (77 FR 37473).

Interestingly the wording does not require to go back and apply the same standard to the 60 existing standards incorporated by reference.

The Problems

The notice provides a listing of 14 potentially adverse consequences that could result from this requirement. They are listed in the following categories:

• Financial;

• Practical;

• Legal; and

• Policy.

I’ll note here just a couple of examples, taking one from each category (77 FR 34473):

Financial – “Costs to government would increase dramatically and immediately if PHMSA must write its own standards or purchase the right to freely publish standards from SDOs.”

Practical – “Government regulations with government-unique standards would not be likely to keep pace with technological and safety advancements made in the private sector.”

Legal – “Intellectual property laws play a critical role for both in the relationship between the government and the SDOs and in the relationship between the SDOs and its licensors or licensees.”

Policy – “Likely inconsistency of U.S. and international standards would arise due to inability to incorporate VCS and difficulty in harmonizing government-unique standards.”

The Meeting

The Notice identifies three objective of the meeting

• Provide an overview;

• Identify constraints; and

• Collect public input.

Additional information on the meeting can be found on the workshop web site. Personnel wishing to attend the meeting should register with PHMSA by email (jewel.smith.ctr@dot.gov). The same address can be used to register one’s intent to make a presentation (up to 5 minutes) at the meeting. The meeting will be web cast; information on that web cast will be on the workshop web site the week of the meeting.