Pipeline Safety Advisory Committees Teleconference – 12-17-13

The Pipeline and Hazardous Material Safety Administration (PHMSA) published a meeting notice in today’ Federal Register (78 FR 70623-70624) for a teleconference of a joint meeting of the Gas Pipeline Advisory Committee (GPAC) and the Liquid Pipeline Advisory Committee (LPAC) (Shared Web Site) on December 17^th, 2013.

The joint meeting will consider a proposed rule to incorporate by reference two new standards and 21 updated editions of currently referenced standards in 49 CFR Parts 192, 193, and 195. This is apparently the “Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Amendments” NPRM that according to the Spring 2013 Regulatory Agenda is supposed to be published in December. Obviously, that date won’t be met as this meeting is part of the regulatory review process at PHMSA before that NPRM would be published. I suspect that the earliest this will go to the Office of Management and Budget for their final review will be sometime in January.

One of the topics that should come up in this discussion will be how these updates will be made while complying with the congressional mandate {§24 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (PL 112-90)} to reduce reliance on such incorporation by reference documents. That requirement prohibited PHMSA from using such documents unless they were available without charge to the regulated community. There are on-going discussions in PHMSA about this issue and Congress modified the requirements earlier this year (PL 113-30).

The public is invited to follow the teleconference (there is no mention in the notice of allowing public comments during the discussion) either via telephone or in person (in Washington, DC). The teleconference number will be made available on the PHMSA web site at some future date (though the PHMSA web site is circuitous at best). There is a link to the meeting page where you are supposed to be able to register for the in-person option, but as of 05:30 CST this morning there is no sign-up information on that site.

Public comments are being solicited but there is some confusion about where to send the comments. There are two different docket numbers referenced in the notice for use on the Federal eRulemaking Portal (www.Regulations.gov).  The first docket number PHMSA-2009-020 is the generic docket number for the meetings of these two advisory committees. Since it contains a copy of today’s FR notice it is probably the proper place to post comments. The second docket number reference (PHMSA-2013-2003) is almost certainly a bad misprint as there have not been 2002 PHMSA docket entries this year.

Senate Passes HR 2576 – Pipeline Safety

Yesterday the Senate passes HR 2576, the Pipeline Incorporation by Reference Bill, by unanimous consent. Sen. Reid (D,NV) asked for the bill to be discharged from Committee and it was adopted without debate. The bill now goes to the President for signature.

House Passes HR 2576

As expected this evening the House passed HR 2576, Pipeline Incorporation by Reference Bill. The bill passed by an overwhelmingly bipartisan recorded vote of 405 - 2; only two Democrats dissented. Fifteen days from introduction to passage in House; this demonstrates that the system can work.

It will be interesting to see if anyone in the Senate and more importantly on the Senate Transportation and Infrastructure Committee will push this bill as effectively as it was pushed in the House.

House Transportation Committee Approved HR 2576

As expected the House Transportation and Infrastructure Committee adopted HR 2576, Pipelines Incorporations by Reference Bill, by a voice vote in a markup hearing today. No changes were made to the bill as it was ordered reported favorably. The Committee has a fact sheet available explaining the Committee’s reasoning in adopting the bill.

I still kind of expect that this bill will be added to a transportation authorization bill.

New Mark-up Hearing Scheduled

Yesterday evening the House Transportation and Infrastructure Committee added a markup hearing for tomorrow. Among the bills to be considered will be HR 2576, a bill that affects the pipeline safety law by amending 49 USC 60102(p), the Limitation on Incorporation of Documents by Reference.

The bill revises that paragraph (added in January, 2012 by PL 112-90, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011) to read:

“Beginning 3 years after the date of enactment of this subsection, the Secretary may not issue a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge.”

The bill changed the time limit from one year to 3 years {§1(1)}, removed the words ‘guidance or’ from the phrase “not issue guidance or a regulation” {§1(2)}, and removed the words “on an Internet Web Site” from the end of the paragraph.

In short, this bill would expand, slightly, the use of incorporation by reference that was restricted somewhat by the 2012 law.

Given the number of other bills being considered by the Committee during this hearing, I don’t expect that any significant changes will be made to this bill in mark-up. The bill will certainly pass in committee and I suspect that it will pass on the floor without significant opposition if it gets to the floor. It might also get added to the DOT authorization bill.

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.