Congressional Record, Volume 159 Issue 101 (Tuesday, July 16, 2013)

[Congressional Record Volume 159, Number 101 (Tuesday, July 16, 2013)]
[House]
[Pages H4495-H4501]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

AVAILABILITY OF PIPELINE SAFETY REGULATORY DOCUMENTS

Mr. PETRI. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 2576) to amend title 49, United States Code, to modify
requirements relating to the availability of pipeline safety regulatory
documents, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 2576

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. AVAILABILITY OF PIPELINE SAFETY REGULATORY
DOCUMENTS.

Section 60102(p) of title 49, United States Code, is
amended--
(1) by striking ``1 year'' and inserting ``3 years'';
(2) by striking ``guidance or''; and
(3) by striking ``, on an Internet Web site''.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Petri) and the gentlewoman from Nevada (Ms. Titus) each
will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin.

{time} 1730

General Leave

Mr. PETRI. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
include extraneous materials on H.R. 2576.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. PETRI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of the bill before us, H.R. 2576. This
bill is a correction of an unintended consequence of the bipartisan
Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011. It
is sponsored by Chairman Denham of the Subcommittee on Railroads,
Pipelines, and Hazardous Materials, along with full committee Chairman
Shuster, Ranking Member Rahall, and subcommittee Ranking Member Brown.
Last Congress, section 24 of the Pipeline Safety Act included a good-
faith provision intended to make the pipeline safety regulations and
guidance of the Pipeline and Hazardous Materials

[[Page H4496]]

Safety Administration, or PHMSA, more transparent. It did so by
requiring any document or portion thereof incorporated by reference
into the new regulations and guidance of PHMSA to be made available
free of charge on the Internet. In so doing, however, an unintended
consequence of this language was created that, contrary to the intent
of Congress, has adversely impacted the ability of PHMSA to move
forward with its regulatory agenda by placing practical barriers on
PHMSA's ability to rely on the state-of-the-art technical standards
written by standards developing organizations, referred to as SDOs.
This bill simply corrects this unintended outcome and preserves the
intellectual property rights of these organizations while still meeting
the goals of a transparent government with free access to standards for
noncommercial purposes.
Specifically, the bill allows for standards to be made free of charge
but strikes ``on an Internet Web site,'' which allows PHMSA and SDOs
more leeway to comply with the law. It also gives industry and PHMSA
extra time to comply by making it effective 3 years from enactment
instead of 1 year.
Finally, the bill limits the applicability of the provision to only
pipeline safety organizations. I believe that this bipartisan technical
correction will provide PHMSA with the flexibility needed to continue
to fully leverage its partnership with standards developing
organizations and save the government money by not requiring PHMSA to
develop its own technical standards for rulemaking.
I reserve the balance of my time.

House of Representatives,

Committee on Energy and Commerce,

Washington, DC, July 11, 2013.
Hon. Bill Shuster,
Chairman, Committee on Transportation and Infrastructure,
Washington, DC.
Dear Chairman Shuster: I write concerning H.R. 2576, a bill
to amend title 49, United States Code, to modify requirements
relating to the availability of pipeline safety regulatory
documents, and for other purposes, which was ordered to be
reported out of your Committee on July 10, 2013. I wanted to
notify you that the Committee on Energy and Commerce will
forgo action on H.R. 2576 so that it may proceed
expeditiously to the House floor for consideration.
This is being done with the understanding that the
Committee on Energy and Commerce is not waiving any of its
jurisdiction, and the Committee will not in any way be
prejudiced with respect to the appointment of conferees or
its jurisdictional prerogatives on this or similar
legislation.
I would appreciate your response to this letter, confirming
this understanding, and ask at a copy of our exchange of
letters on this matter be included in the Congressional
Record during consideration of H.R. 2576 on the House floor.
Sincerely,
Fred Upton,
Chairman.
____

Committee on Transportation and Infrastructure, House of
Representatives,
Washington, DC, July 11, 2013.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce, Washington, DC.
Dear Mr. Chairman: Thank you for your letter regarding H.R
2576, a bill to amend title 49, United States Code, to modify
requirements relating to the availability of pipeline safety
regulatory documents, and for other purposes, which was
ordered to be reported out of the Committee on Transportation
and Infrastructure on July 10, 2013. I appreciate your
willingness to support expediting floor consideration of this
legislation.
I acknowledge that by forgoing action on this legislation,
the Committee on Energy and Commerce is not waiving any of
its jurisdiction and will not in any way be prejudiced with
respect to the appointment of conferees or its jurisdictional
prerogatives on this or similar legislation.
I appreciate your cooperation regarding this legislation
and I will include our letters on H. R. 2576 in the
Congressional Record during floor consideration of this bill.
Sincerely,
Bill Shuster,
Chairman.

Ms. TITUS. Mr. Speaker, I yield myself such time as I may consume.
On January 3, 2012, President Obama signed into law the Pipeline
Safety, Regulatory Certainty, and Job Creation Act of 2011. Section 24
of that act states that, effective January 3, 2013, the Secretary of
Transportation may not issue ``guidance or a regulation that
incorporates by reference any documents or portions thereof unless the
documents or portions thereof are made available to the public free of
charge or on an Internet Web site.''
Then, in the last Congress, the Subcommittee on Railroads, Pipelines,
and Hazardous Materials held a number of hearings on pipeline safety,
one of which highlighted a current regulation that required pipeline
operators to develop and implement public education and awareness
programs. The regulation did not explain what should be contained in
the education programs, however. Instead, it pointed readers to an
industry-developed standard. But in order to read the standard, you had
to pay the drafters more than $1,000. If you're a small community,
$1,000 is a lot of money for access to just one of many pipeline safety
standards.
I and many of my colleagues have concerns about the Federal
Government issuing a regulation that requires whoever wants to read
it--particularly local communities, first responders, and private
citizens--to have to purchase it from a private association.
Fortunately, the 2011 act resolved this situation.
Following enactment of section 24, DOT held a public workshop and
Webcast with more than 70 industry, safety, and government
representatives present to discuss options for implementing the new
law. Nearly 200 other entities participated in the Webcast. Additional
comments were provided through the Federal Register notice, including
by the Small Business Administration, which noted many concerns of
small businesses with the continued use of incorporation by reference.
Since the workshop, several standards development organizations have
agreed in writing to electronically post on the Internet all of the
consensus standards that the Pipeline and Hazardous Materials Safety
Administration incorporates by reference into the Federal pipeline
safety regulations. Those include ASTM International, the Manufacturers
Standardization Society, the Gas Technology Institute, NACE
International, the National Fire Protection Association, the American
Petroleum Institute, the American Gas Association. I will include their
letters in the Congressional Record.
I also will insert letters from the Pipeline Safety Trust, Dakota
Rural Action, and Columbia law professor Peter Strauss expressing the
need for public availability of the standards in the Record.
Unfortunately, some organizations have expressed concerns about
posting their standards on the Internet. This has in turn held up
progress of several important safety rulemakings that were mandated in
the 2011 pipeline law. So in the spirit of bipartisanship, and not
wanting to hold up the rulemaking process, I believe the law should be
modified to provide DOT with additional time to implement it and with
additional flexibility to determine how best to make the standards
widely available to the public. I believe that, even with these changes
that are in the law, the law will continue to address the transparency
and openness concerns of the safety community.
Mr. Speaker, I yield back the balance of my time.

U.S. Department of Transportation, Pipeline and Hazardous
Materials Safety Administration,
Washington, DC, March 4, 2013.
Re incorporation by reference of voluntary consensus
standards for pipeline safety regulations.

Mr. James Thomas,
President, ASTM International,
West Conshocken, PA.
Dear Mr. Thomas: As you know, the practice of incorporating
voluntary consensus standards allows pipeline operators to
use the most current industry technologies, materials, and
management practices available on today's market. New or
updated standards often further innovation and increase the
use of new technologies that improve the safety and
operations of pipelines and pipeline facilities.
On January 3, 2012, President Obama signed into law the
Pipeline Safety, Regulatory Certainty, and Job Creation Act
of 2011 (P.L. 112-90) (the Act). Section 24 of the Act states
that, effective January 3, 2013, PHMSA may not issue
``guidance or a regulation 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.''
In support of Section 24 of the Act, we thank ASTM
International (ASTM) for agreeing to electronically post on
the Internet all ASTM consensus standards that PHMSA
incorporates by reference into the

[[Page H4497]]

federal pipeline safety regulations after January 3, 2013. It
has also agreed to post on the Internet any updated, revised,
or new ASTM consensus standards that PHMSA proposes during
rulemaking to incorporate by reference. While ASTM has
discretion in how they accomplish this objective, it has
agreed that, at a minimum, these voluntary consensus
standards will be: Electronically posted on an Internet Web
site; Available to the public; and Free of charge.
ASTM has agreed to notify PHMSA immediately if it is no
longer able or capable of meeting the above minimum posting
requirements. We request that you also notify us if any
standards are removed from your electronic archives, if you
have such an archives. The voluntary consensus standards
developed by ASTM play a critical role in safeguarding
pipeline safety, and PHMSA is tremendously appreciative of
the constructive role ASTM is playing in ensuring their
continued use in the federal pipeline safety regulations.
After you review the terms of this agreement, please sign
below and return a copy to PHMSA. If you have questions,
please contact Mike Israni at 202-366-4571.
Sincerely,
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
____

Mr. Robert O'Neill,
Executive Director, Manufacturers Standardization society,
Vienna, VA.
Dear Mr. O'Neill: As you know, the practice of
incorporating voluntary consensus standards allows pipeline
operators to use the most current industry technologies,
materials, and management practices available on today's
market. New or updated standards often further innovation and
increase the use of new technologies that improve the safety
and operations of pipelines and pipeline facilities.
On January 3, 2012, President Obama signed into law the
Pipeline Safety, Regulatory Certainty, and Job Creation Act
of 2011 (P.L. 112-90) (the Act). Section 24 of the Act states
that, effective January 3, 2013, PHMSA may not issue
``guidance or a regulation 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.''
In support of Section 24 of the Act, we thank the
Manufacturers Standardization Society (MSS) for agreeing to
electronically post on the Internet all MSS consensus
standards that PHMSA incorporates by reference into the
federal pipeline safety regulations after January 3, 2013. It
has also agreed to post on the Internet any updated, revised,
or new MSS consensus standards that PHMSA proposes during
rulemaking to incorporate by reference. While MSS has
discretion in how they accomplish this objective, it has
agreed that, at a minimum, these voluntary consensus
standards will be: Electronically posted on an Internet Web
site; Available to the public; and Free of charge.
MSS has agreed to notify PHMSA immediately if it is no
longer able or capable of meeting the above minimum posting
requirements. We request that you also notify us if any
standards are removed from your electronic archives, if you
have such an archives. The voluntary consensus standards
developed by MSS play a critical role in safeguarding
pipeline safety, and PHMSA is tremendously appreciative of
the constructive role MSS is playing in ensuring their
continued use in the federal pipeline safety regulations.
After you review the terms of this agreement, please sign
below and return a copy to PHMSA. If you have questions,
please contact Mike Israni at 202-366-4571.
Sincerely,
Jeffrey D. Wiese ,
Associate Administrator for Pipeline Safety.
____

Mr. Eddie Johnston,
Managing Director, Gas Technology Institute,
Des Plaines, IL.
Dear Mr. Johnston: As you know, the practice of
incorporating voluntary consensus standards allows pipeline
operators to use the most current industry technologies,
materials, and management practices available on today's
market. New or updated standards often further innovation and
increase the use of new technologies that improve the safety
and operations of pipelines and pipeline facilities.
On January 3, 2012, President Obama signed into law the
Pipeline Safety, Regulatory Certainty, and Job Creation Act
of 2011 (P.L. 112-90) (the Act). Section 24 of the Act states
that, effective January 3, 2013, PHMSA may not issue
``guidance or a regulation 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.''
In support of Section 24 of the Act, we thank the Gas
Technology Institute (GT1) for agreeing to electronically
post on the Internet all GTI consensus standards that PHMSA
incorporates by reference into the federal pipeline safety
regulations after January 3, 2013. It has also agreed to post
on the Internet any updated, revised, or new GTI consensus
standards that PHMSA proposes during rulemaking to
incorporate by reference. While GTI has discretion in how
they accomplish this objective, it has agreed that, at a
minimum, these voluntary consensus standards will be:
Electronically posted on an Internet Web site; Available to
the public; and Free of charge.
GTI has agreed to notify PHMSA immediately if it is no
longer able or capable of meeting the above minimum posting
requirements. We request that you also notify us if any
standards are removed from your electronic archives, if you
have such an archives. The voluntary consensus standards
developed by GTI play a critical role in safeguarding
pipeline safety, and PHMSA is tremendously appreciative of
the constructive role GTI is playing in ensuring their
continued use in the federal pipeline safety regulations.
After you review the terms of this agreement, please sign
below and return a copy to PHMSA. If you have questions,
please contact Mike Israni at 202-366-4571.
Sincerely,
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
____

Ms. Helena Seelinger,
Senior Director, NACE International,
Houston, TX.
Dear Ms. Seelinger: As you know, the practice of
incorporating voluntary consensus standards allows pipeline
operators to use the most current industry technologies,
materials, and management practices available on today's
market. New or updated standards often further innovation and
increase the use of new technologies that improve the safety
and operations of pipelines and pipeline facilities.
On January 3, 2012, President Obama signed into law the
Pipeline Safety, Regulatory Certainty, and Job Creation Act
of 2011 (P.L. 112-90) (the Act). Section 24 of the Act states
that, effective January 3, 2013, PHMSA may not issue
``guidance or a regulation 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.''
In support of Section 24 of the Act, we thank NACE
International (NACE) for agreeing to electronically post on
the Internet all NACE consensus standards that PHMSA
incorporates by reference into the federal pipeline safety
regulations after January 3, 2013. It has also agreed to post
on the Internet any updated, revised, or new NACE consensus
standards that PHMSA proposes during rulemaking to
incorporate by reference. While NACE has discretion in how
they accomplish this objective, it has agreed that, at a
minimum, these voluntary consensus standards will be:
Electronically posted on an Internet Web site; Available to
the public; and Free of charge.
NACE has agreed to notify PHMSA immediately if it is no
longer able or capable of meeting the above minimum posting
requirements. We request that you also notify us if any
standards are removed from your electronic archives, if you
have such an archives. The voluntary consensus standards
developed by NACE play a critical role in safeguarding
pipeline safety, and PHMSA is tremendously appreciative of
the constructive role NACE is playing in ensuring their
continued use in the federal pipeline safety regulations.
After you review the terms of this agreement, please sign
below and return a copy to PHMSA. If you have questions,
please contact Mike Israni at 202-366-4571.
Sincerely,
Jeffrey D. Weise,
Associate Administrator for Pipeline Safety.
____

NACE International,

The Corrosion Society,

Houston, TX, March 13, 2013.
Mr. Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety, U.S. Department
of Transportation, Pipeline and Hazardous Materials
Safety Administration, Washington, DC.
Dear Jeff: Thank you for your letter received on March 4,
2013, seeking agreement by NACE International on action to be
taken in concurrence with the Pipeline Safety, Regulatory
Certainty, and Job Creation Act of 2011 (PL. 112-90), Section
24.
NACE International agrees with the action requested in the
letter, with a proviso that PHMSA will notify NACE
International prior to issuing proposed rulemaking that

[[Page H4498]]

references NACE standards. This proviso is made in response
to the statement that NACE ``. . . has also agreed to post on
the Internet any updated, revised, or new NACE consensus
standards that PHMSA proposes during rulemaking . . .'' NACE
has many standards available to NACE members, but publicly
posts only standards that are referenced by PHMSA. To ensure
that NACE proactively posts the NACE standards covered in our
agreement, NACE personnel would need to know of their IBR
status from PHMSA.
Jeff, thank you for your service to pipeline safety.
Kind regards,

Helena Seelinger,

Sr. Director, Membership Services,
Public Affairs, & Standards.
____

Mr. James Shannon,
President, National Fire Protection Association,
Quincy, MA.
Dear Mr. Shannon: As you know, the practice of
incorporating voluntary consensus standards allows pipeline
operators to use the most current industry technologies,
materials, and management practices available on today's
market. New or updated standards often further innovation and
increase the use of new technologies that improve the safety
and operations of pipelines and pipeline facilities.
On January 3, 2012, President Obama signed into law the
Pipeline Safety, Regulatory Certainty, and Job Creation Act
of 2011 (P.L. 112-90) (the Act). Section 24 of the Act states
that, effective January 3, 2013, PHMSA may not issue
``guidance or a regulation 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.''
In support of Section 24 of the Act, we thank the National
Fire Protection Association (NFPA) for agreeing to
electronically post on the Internet all NFPA consensus
standards that PHMSA incorporates by reference into the
federal pipeline safety regulations after January 3, 2013. It
has also agreed to post on the Internet any updated, revised,
or new NFPA consensus standards that PHMSA proposes during
rulemaking to incorporate by reference. While NFPA has
discretion in how they accomplish this objective, it has
agreed that, at a minimum, these voluntary consensus
standards will be: Electronically posted on an Internet Web
site; Available to the public; and Free of charge.
NFPA has agreed to notify PHMSA immediately if it is no
longer able or capable of meeting the above minimum posting
requirements. We request that you also notify us if any
standards are removed from your electronic archives, if you
have such an archives. The voluntary consensus standards
developed by NFPA play a critical role in safeguarding
pipeline safety, and PHMSA is tremendously appreciative of
the constructive role NFPA is playing in ensuring their
continued use in the federal pipeline safety regulations.
After you review the terms of this agreement, please sign
below and return a copy to PHMSA. If you have questions,
please contact Mike Israni at 202-366-4571.
Sincerely,
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
____

Energy API,

Standards Department,

Washington, DC, May 1, 2013.
Re incorporation by reference of voluntary consensus
standards for pipeline safety regulations.

Mr. Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety, U.S. Department
of Transportation, Pipeline and Hazardous Materials
Safety Administration, Washington, DC.
Dear Mr. Wiese: Thank you for your March 4, 2013 letter
regarding incorporation by reference of voluntary consensus
standards for pipeline safety regulations. As you know, API
made the decision in the fall of 2010, well before the
passage of the Pipeline Safety, Regulatory Certainty, and Job
Creation Act of 2011, to place all of API's Govemment-cited
and safety-standards on API's website for free public
viewing. This site can be found at http://www.api.org/
publications. It is our understanding that this action fully
meets the intent of the Act.
It is API's policy to maintain this website and to include
on this website any API consensus standards that PHMSA
proposes during formal rulemaking to incorporate by reference
into Federal regulations, to ensure that all users of the
website have access to API's most up to date best industry
practices.
Again, thank you for your letter of March 4, 2013, and
please let me know if you have any further questions.
Sincerely,
David Miller.
Director, Standards.
____

Ms. Christina Sames,
Vice President, Operations and Engineering, American Gas
Association, Washington, DC.
Dear Ms. Sames: As you know, the practice of incorporating
voluntary consensus standards allows pipeline operators to
use the most current industry technologies, materials, and
management practices available on today's market. New or
updated standards often further innovation and increase the
use of new technologies that improve the safety and
operations of pipelines and pipeline facilities.
On January 3, 2012, President Obama signed into law the
Pipeline Safety, Regulatory Certainty, and Job Creation Act
of 2011 (P.L. 112-90) (the Act). Section 24 of the Act states
that, effective January 3, 2013, PHMSA may not issue
``guidance or a regulation 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.''
In support of Section 24 of the Act, we thank the American
Gas Association (AGA) for agreeing to electronically post on
the Internet all AGA consensus standards that PHMSA
incorporates by reference into the federal pipeline safety
regulations after January 3, 2013. It has also agreed to post
on the Internet any updated, revised, or new AGA consensus
standards that PHMSA proposes during rulemaking to
incorporate by reference. While AGA has discretion in how
they accomplish this objective, it has agreed that, at a
minimum, these voluntary consensus standards will be:
Electronically posted on an Internet Web site; Available to
the public; and Free of charge.
AGA has agreed to notify PHMSA immediately if it is no
longer able or capable of meeting the above minimum posting
requirements. We request that you also notify us if any
standards are removed from your electronic archives, if you
have such an archives. The voluntary consensus standards
developed by AGA play a critical role in safeguarding
pipeline safety, and PHMSA is tremendously appreciative of
the constructive role AGA is playing in ensuring their
continued use in the federal pipeline safety regulations.
After you review the terms of this agreement, please sign
below and return a copy to PliMSA. If you have questions,
please contact Mike Israni at 202-366-4571.
Sincerely,
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.

Mr. PETRI. Mr. Speaker, I urge my colleagues to join me in supporting
this legislation, and I yield back the balance of my time.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I rise in support of
H.R. 2576.
This bill represents a commonsense technical fix to section 24 of the
Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011.
The changes made by H.R. 2576 will provide the Department of
Transportation's Pipeline and Hazardous Materials Safety Administration
with the flexibility necessary to find a balanced solution between the
use of standards incorporated by reference in its safety regulations
and the need to increase transparency and access to those standards.
The National Technology Transfer and Advancement Act of 1995 requires
federal agencies to use voluntary consensus standards developed by the
private sector as part of any federal regulation rather than allow the
agencies to create their own government specific standards.
This law created a foundation for a public-private partnership that
has been tremendously beneficial. It has saved the federal government
money by drawing on the vast technical expertise of the private sector
and by creating ``buy-in'' from the parties who will ultimately be
regulated--increasing compliance and lessening the cost of enforcement.
While this partnership is extremely valuable and should not be
weakened in anyway, it is also important that the public have access to
these standards, especially if they are going make their way into a
regulation.
I believe there is a middle ground to be found here. In fact, the
Administrative Conference of the United States offers a number of
recommendations that federal agencies should consider.
One such recommendation is that federal agencies should work with
standards development organizations to make their copyrighted materials
reasonably available to interested parties during the rulemaking
process. This could be accomplished by posting a read-only copy of the
standard online for a limited period of time.
The bottom line is DOT needs to find a path forward so that the
safety of the nation's pipelines is not eroded and the most up-to-date
standards are utilized. H.R. 2576 provides DOT with the flexibility to
find that path. I urge my colleagues to support HR. 2576.

[[Page H4499]]

Ms. BROWN of Florida. Mr. Speaker, when I was Chair of the
Subcommittee on Railroads, Pipelines and Hazardous Materials, I held a
number of hearings on pipeline safety, one of which highlighted an
American Petroleum Institute-developed (API) standard which was
incorporated by reference in a pipeline education and awareness
regulation. But in order to comprehend the regulation, interested
parties had to obtain the API standard, which cost more than $1,000.
One thousand dollars is a lot of money, particularly for small
communities, local emergency responders, and pipeline safety advocates,
for just one of the many pipeline safety standards referenced in
regulations issued by the Pipeline and Hazardous Materials Safety
Administration (PHMSA).
Fortunately, Congress resolved the situation in the Pipeline Safety,
Regulatory Certainty, and Job Creation Act of 2011. Section 24 of the
Act prohibited the Secretary of Transportation, effective January 3,
2013, from issuing ``guidance or a regulation 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.''
Since enactment of the legislation, all but one organization has
agreed in writing to electronically post on the Internet all of their
consensus standards that PHMSA incorporates by reference into the
federal pipeline safety regulations, including:
ASTM International; The Manufacturers Standardization Society; The
Gas Technology Institute; NACE International; The National Fire
Protection Association; The American Petroleum Institute; The American
Gas Association.
Many other organizations have submitted letters to PHMSA expressing
the need for public availability of the standards. I ask unanimous
consent that the letters from the Pipeline Safety Trust, Dakota Rural
Action, and Columbia Law Professor Peter Strauss be included in today's
Record.
One organization, however, has expressed concern about posting their
standards on the Internet. This has, in turn, held up progress of
several important safety rulemakings that were mandated in the 2011
pipeline law.
So in an effort to move these important rulemakings forward, I
believe the law should be modified to provide DOT with additional time
to implement it and with additional flexibility to determine how best
to make the standards widely available to the public.
I believe that even with these changes the law will continue to
address the transparency and openness concerns of the safety community.
I urge my colleagues to support H.R. 2576.

Pipeline Safety Trust,

Bellingham, WA, July 15, 2013.
Hon. Corrine Brown,
Ranking Member, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, U.S. House of Representatives,
Washington, DC.
Dear Ms. Brown: We would like to thank the Transportation &
Infrastructure Committee and the Energy & Commerce Committee
for their efforts during the passage of the Pipeline Safety,
Regulatory Certainty, and Job Creation Act of 2011 (the 2011
Act) to ensure that the public can actually freely read all
the regulations that Congress mandates and that PHMSA then
creates through the rulemaking process that could impact
public safety and the health of the environment. A review of
the Code of Federal Regulations under which PHMSA operates
finds the following numbers of incorporated standards:

STANDARDS INCORPORATED BY REFERENCE IN 49 CFR PARTS 192, 193, 195
(As of 6/9/2010)
------------------------------------------------------------------------
CFR Part Topic Standards*
------------------------------------------------------------------------
192................................ Natural and Other Gas. 39
193................................ Liquefied Natural Gas. 8
195................................ Hazardous Liquids..... 38
Total ...................... 85
------------------------------------------------------------------------
*Note: Some standards may be incorporated by reference in more than one
CFR Part.

Before passage of the Act most all of the 85 standards that
had been incorporated into the rules had to be purchased if a
member of the public wanted to know what the regulations
required. PHMSA has estimated the cost to purchase a set of
these standards to be between $8,500-$9,500.
The 2011 Act took the important step of ensuring public
access to these standards by requiring that they be ``made
available to the public, free of charge, on an Internet Web
site.'' This made good sense since web-based access is the
most convenient and cost effective way for the government to
share important information with the public.
Unfortunately, what was not fully realized at the time this
provision was passed, was the financial difficulties it could
pose to some of the standard developing organizations that
have created a business model based on selling such standards
back to the regulated industries and the public. This created
an uncomfortable conflict between what was right in terms of
public access and transparency, and how to continue to
encourage private standards to be created and updated.
In the end all the standard developing organizations but
one, ASME, found a way to meet the obligations of the Act. We
thank these organizations for working hard to provide public
access to their standards and the associated understanding
and trust in the system. Unfortunately, to date ASME has been
unwilling to move forward to provide transparency to their
standards like all the other organizations have been willing
to do. This refusal on ASME's part has caused many important
pending rules to be potentially put on hold since they
contain ASME standards, which PHMSA cannot make available
without ASME's support and assistance. That brings us to
where we are today, extending the implementation period for
this important transparency issues from 1 to 3 years to allow
PHMSA to release pending rules and find a way to make all
these standards ``available free of charge'' to the public.
We hope that all the standard developing organizations that
have designed ways to freely share their standards don't take
this delay as a sign of a lack of commitment to this effort
and remove their standards from public access. We also hope
that ASME and PHMSA will continue their discussions to find a
way to truly make these important parts of the federal
regulations easily and freely available to the public.
We note that in H.R. 2576 the requirement that these
standards be made available ``on an Internet Web site'' has
been removed. This may not be a significant change as long as
PHMSA fulfills the continuing Congressional intent that these
standards be ``made available to the public, free of
charge.'' Clearly ``free of charge'' means exactly what it
says, that a requester incurs no expense in obtaining any
incorporated standard. In no way can the current PHMSA rule,
as spelled out in 49 CFR 192. 7 and 195.3, of requiring
people who want to review a standard to travel to the PHMSA
office in Washington DC be considered ``free of charge'' at
no cost to the requester.
Again, we thank you for your efforts to encourage public
access and transparency regarding the regulations that are
meant to protect their safety and the health of our shared
environment.
Sincerely,
Carl Weimer,
Executive Director.
____

Dakota Rural Action,

Western Org. of Resource Councils,

July 11, 2012.
Re Docket ID PHMSA-2012-0142: implementing incorporation by
reference (IBR) requirements of section 24

We regretfully are not able to attend the public workshop
on July 13 due to expenses of travel. We request that you
consider these comments as you would comments submitted in
person.
We the undersigned organizations are writing to urge you to
oppose any weakening or repeal of Section 24 of H.R. 2845,
the ``Pipeline Safety, Regulatory Certainty and Job Creation
Act of 2011.'' Section 24 assures that future agency pipeline
safety rules that incorporate standards by reference will
require that those standards be made publically available for
free on the Internet.
Western Organization of Resource Councils (WORC) is a
regional network of seven grassroots community organizations
with 10,000 members and 38 local chapters: including Dakota
Rural Action in South Dakota, the Dakota Resource Council in
North Dakota, and the Northern Plains Resource Council in
Montana, which have members affected by the Keystone I
pipeline and the proposed Keystone XL pipeline.
Dakota Rural Action is a grassroots family agriculture and
conservation group that organizes South Dakotans to protect
our family farmers and ranchers, natural resources and unique
way of life. We are a member group of WORC and represent over
950 South Dakotans across the state. Many of our members in
South Dakota have been directly impacted by numerous pipeline
projects, with anticipation of more being constructed.
Representing the public interest, we strive to create a
more fair and open government. Secret laws, or a government
that only allows access to laws by a segment of the public
able to pay for it, goes in direct opposition to the values
of a participatory democracy. Congress has repeatedly
recognized the need for public access to information with the
Administrative Procedures Act, the Federal Register Act, the
National Technology Transfer and Advancement Act, the
Electronic Freedom of Information Act, and, most recently,
with Section 24 of the Pipeline Safety, Regulatory Certainty
and Job Creation Act of 2011.
As of June 2010 there were 85 standards referenced in 46
CFR 192, 193, 195. For a citizen to have access to these
referenced standards they would have to pay private
organizations upwards of $2,000. These associated costs are
an insurmountable burden for an average citizen, making it
practically impossible for the public to knowledgeably
comment in a rulemaking proceeding, or to propose changes to
regulations that already incorporate referenced standards.
There is no reasonable excuse for failing to provide
standards and supporting information that are part of
existing or proposed regulations implementing federal law at
no charge to the public. The fact that these standards were
developed by private associations of companies subject to the
laws and regulations in question does not entitle the
regulated industry or any private entity serving that
industry to profit from exclusive access to information and
language meant to protect public health and safety.

[[Page H4500]]

Anything short of full implementation of Section 24 of the
Pipeline Safety, Regulatory Certainty and Job Creation Act of
2011 would amount to deliberate action by PHMSA to block
public participation in our government, directly
contradicting the principles and values of access and
transparency of the Administration and expressed by Congress
in enacting section 24.
Meredith Redlin,
Chair, Dakota Rural Action.
Lana Sangmeister,
Chair, Western Organization of Resource Councils.
____

Columbia Law School,

New York, NY, July 12, 2012.
Re PHMSA workshop in incorporation by reference.

Gentlefolk: I appreciate the opportunity to file these
comments in support of your workshop. If I may very briefly
summarize their gist, there are three important propositions
I would impress on you:
A sharp distinction should be drawn between Standards
Development Organization (SDO) standards that are genuinely
``technical'' in character and those that, like the API
standards on public hazard warnings, have a policy character
that draws their force from normative conclusions, not
technical expertise, and may serve to promote- industrial
interests.
It is important to distinguish as well between SDOs that
are professionally centered and broadly representative of the
areas for which they develop standards, and those that, like
API, are industrial associations or, like Underwriters
Laboratories, businesses with an economic stake in the use of
their standards beyond supporting standards development and
publication--as by providing necessary testing or
certification services.
Finally, and perhaps most importantly, one should
distinguish between standards that are converted into legal
obligations by the fact of their incorporation, and standards
that are simply identified in guidance or regulations as one
means, but not the exclusive and necessary means, by which
independently stated regulatory requirements can be met.
While the statute your workshop is concerned with addresses
guidance documents as well as legal obligations, the
rationale for requiring free public access to the former is
much weaker. Once agency action has made conformity to a
standard mandatory, it is no longer a voluntary consensus
standard. Law is not properly subject to copyright; but
guidance is not law. Perhaps ways can be found to achieve the
effect of guidance yet that will not require SDOs to
surrender their understandable interest in finding financial
support for their standards-development activities through
the sale of copyright-protected standards serving that role,
and thus remaining voluntary consensus standards.
The problem of incorporation by reference of standards
development organization voluntary standards into federal
regulatory materials has attracted significant attention in
recent months. It was the subject of a major study by the
Administrative Conference of the United States, resulting in
recommendations drawing on an extensive study made by Emily
Bremer, a staff attorney. Subsequently, on behalf of myself
and others, I filed a petition for rulemaking on the subject
with the Office of Federal Register. When OFR published this
petition in the Federal Register with requests for comments,
an FDMS docket of more than 160 items resulted. Subsequently,
OMB held a workshop with NIST and sought commentary on
possible revision of its circular A-119; an FDMS docket of
more than 60 items resulted. A major new book thoroughly
explores the practice of standard-setting, with emphasis on
implications for international trade but attention as well to
the ways in which American practice differs from that of
European nations.
From all these materials, a number of propositions fairly
clearly emerge:
The creation of voluntary consensus standards had its
origin in considerations quite independent of governmental
regulation, and they remain a necessary element of today's
market economies, permitting market participants to deal
confidently with one another. They are extremely valuable for
this reason. This reality is dominant, and is independent of
governmental use of standards for regulatory purposes.
Indeed, it appears that the great bulk of voluntary consensus
standards are not incorporated into law, as such, and for
them no issue whatever of inhibition on copyright arises. To
the extent SDO viability depends on the sale of these
standards, it remains untroubled. The SDO commentary in the
two FDMS dockets just mentioned consistently obscures this
reality. It is written as if every standard SDOs produce is
threatened by the proposition that those that are
incorporated as law should be publicly available to those
affected.
By influencing the markets for affected goods, those who
participate in the setting of standards, may gain significant
competitive advantages over those who do not. This is
particularly true for non-consensus standards and for
industry-centered, corporate-membership standards-generating
organizations like the American Petroleum Institute, whose
membership is more than 500 oil and natural gas companies.
Industrial standard-setters like API may be contrasted to,
say, ASME--which has 125,000 members and no corporate
members--or the many other SDOs having tens of thousands of
individual, professional members. For the latter, the issue
of possibly gaining a competitive advantage is rarely
present. It is more likely that the interests of small
businesses that will need to adhere to the standards adopted
will be represented and heard. Gaining competitive advantage
may also be the result for an individual business, such as
Underwriters Laboratories, whose testing and certifying
subsidiaries may profit from the conversion of UL's preferred
standards into legal obligations.
European standards organizations are typically organized
along hierarchical lines, both national (the British
Standards Institute) and European (CEN, CENELEC), so that on
any given matter, only one standard will emerge. Their
processes for generating standards involve wide participation
by all interested groups--even to the extent that the
participation of socially important but resource-poor groups
may be subsidized. European technical standards are typically
framed as independent of the regulations to which they
relate, and are not in themselves legally binding. Since they
only serve to define one assured method for establishing
regulatory compliance, not an exclusive method, they merely
create a presumption that one complying with them has
complied with the substantive norms of the regulation.
Although showing that one has met the standard is usually the
more efficient path to demonstrating regulatory compliance,
citizens remain free to prove their compliance in a different
way.
The pattern of standard setting in the United States is
``decentralized and characterized by extensive competition
among many standard-setting bodies, operating with little
government oversight and no public financial support. . . .
[It] comprises some 300 trade associations, 130 professional
and scientific societies, 40 general membership
organizations, and at least 150 consortia which together have
set more than 50,000 standards. . . . Spurred by competition,
these organizations have developed numerous standards of the
highest technical quality, but the fragmentation also . . .
results in conflicting standards and hence poor
interoperability . . .
``The shift of rulemaking to the international level turns
this fragmentation into a problem for the effectiveness of
American interests in the global market place. Coordination
and cooperation do not arise spontaneously among competing
standard-setters, and . . . [there is] a long tradition of
keeping government at arms' length. . . . In the absence of
government control or any other central monitoring and
coordinating agent, the American system for product
standardization is characterized by extreme pluralism and
contestation. . . . ANSI remains a weak institution, even
though it formally is the sole representative of U.S.
interests in international standards organizations. . . .
Private U.S. standards organizations, which derive 50 to 80
percent of their income from the sale of their proprietary
standards documents . . . fear that a more centralized system
would rob them of these revenues and eclipse their power
and autonomy. . . . ``Rather than reach out to community
interests, as European standards organizations do ``as a
prerequisite for genuine openness and due process. . . .
most American standards organizations contend that
willingness to pay is the best measure of interest in the
process and see no need for financial assistance,'' and in
some contexts the sum that must be paid--even by federal
agencies wishing to participate--is quite high. Some
American standard-setters, the American Petroleum
Institute, for example, clearly present themselves as
industry representatives. This is not too problematic for
standards that serve only to govern technical issues
important to relations among industrial participants
needing a confident basis for their dealing. Yet
acceptance of industry representatives as standard-setters
is questionable in matters that are not technical in
nature and also involve public interests, such as pipeline
hazard warnings or impositions on small businesses who are
the necessary customers of the industry.
Competition benefits the users of standards only if
adherence to them is not mandatory. One way in which a
standards organization can defeat its competitors under the
American system, and obtain a monopoly over standards (and
their sale) is by having them incorporated by reference, not
as one means for regulatory compliance (as in Europe) but as
binding law, that must be complied with and can result in
sanctions if departed from. With that monopoly, too, the
standards organization acquires the power to charge a non-
market price. The legislation that is the subject of this
hearing resulted from the exercise of just that power. One of
the comments in response to our petition to the Office of
Federal Register for rulemaking reports that another
standards association was charging two-and-a-half times as
much for a standard that had been incorporated as law, as for
its subsequent standard on the same matter, that had not yet
been substituted for the first by amendatory rulemaking. Over
half the incorporated standards in CFR predate 1995. Since
SDOs uniformly update their standards on a relatively short
cycle, most if not all of these earlier, still incorporated
standards will presumptively have been replaced by the
issuing SDO. Yet, if they are still law, they remain
mandatory. Sale of outdated but still compulsory standards
may improve the SDO's

[[Page H4501]]

bottom line, but it cannot rationally be ascribed to the
business model for sustaining fresh standards development.
Commercial advantage also inheres in standards generated by
businesses that profit from compliance determinations. On the
Comm2000 website where Underwriters Laboratories offers its
standards for sale, its Standard for Manual Signaling Boxes
for Fire Alarm Systems, 52 pages long in all, costs $502 in
hard-copy and $402 for a use-restricted pdf version; $998
($798) purchases a three year subscription that includes
revisions, interpretations, etc. However, the text of this
standard incorporates by reference five other UL standards,
whose purchase would add five times these amounts (as each of
these referenced standards is identically priced). And even
this would not complete the picture; one of these five
referenced standards (746C, Standard for Polymeric
Materials--Use in Electrical Equipment Evaluations) itself
references 27 unique others, whose individual prices are
often hundreds of dollars higher--for a total cost well in
excess of $10,000. Standards in the libraries of professional
engineering SDOs are more likely to sell in the $50 range.
Comments in the FDMS dockets tend to assert that all
standards are sold at reasonable prices, without giving
concrete details. Neither OFR nor the incorporating agency
exercises control over the reasonableness of price at the
moment of incorporation. And, once incorporation has
occurred, any opportunity for price control by the OFR or the
incorporating agency vanishes. Of course, if standards were
treated merely as guidance, not law, market forces would
operate as one control; and agencies could more freely remove
a standard from its compliance guidance if persuaded its
price had become unreasonable--either in general, or in its
application to vulnerable small businesses.
This last point suggests the appropriateness of turning to
what is arguably the most objectionable feature of the
statute that is the subject of this workshop: it applies
equally to standards treated as guidance identifying a
satisfactory but not mandatory means of complying with an
independently stated regulatory obligation, and to standards
incorporated in a manner that makes them the law itself--
mandatory obligations in and of themselves. In my judgment,
these two situations are quite different, both in law and in
their implications for agency efficiency and effective
regulation.
SDO standards converted into law--a mandatory obligation--
by the manner of their incorporation suffer all the possible
deficits mentioned above
They end the competition among American voluntary consensus
standard-setters that is identified by many as a particular
strength of our system in relation to others.
Correspondingly, they confer monopoly pricing power on the
SDO whose standard has been converted from a voluntary
consensus standard into an involuntary, mandatory obligation.
They significantly limit agency capacity to respond to new
developments, since changing a mandatory standard set by rule
will require fresh rulemaking, with its procedural costs and
obstacles. That this occurs in practice may be seen in the
simple fact that over half of incorporated standards are more
than seventeen years old--some, indeed, no longer
``available'' in any form, reasonably or not.
The income streams resulting from law-forced purchases of
mandatory but outdated standards may be convenient for the
SDOs receiving them, but bear no relationship either to sound
industrial practice (adherence to the contemporary standard
should be preferable) or to the SDO business model for
supporting the continuing development of standards.
Law is not subject to copyright. The Copyright Office knows
this; it has been hornbook American law from the inception.
The arguments here are most eloquently made in the FDMS
docket comments of the ABA Section of Administrative Law and
Regulatory Practice, and would be tedious to repeat at
length. Moreover, this proposition is wholly independent of
the policy concerns SDOs raise to argue that it should not be
the case. It simply is the case and the consequence is that
if an agency has converted a voluntary consensus standard
into a legal obligation, it cannot fail to inform the public
what is its legal obligation. (SDOs should perhaps for this
reason resist agencies' conversion of voluntary standards
into legal obligations; and the question whether the agency
must compensate the SDO for doing so is an open one. Some
argue that the benefit to the SDO from the imprimatur of
incorporation will exceed any detriment to its bottom line--
incorporations typically involves only part of the standard
involved, and most businesses will wish to purchase the
standards in their full, convenient form. Moreover,
incorporated standards make up only a fraction of an SDO's
armamentarium.) When Minnesota enacted the Uniform Commercial
Code, the ALI (its drafter) retained its copyright for
purposes of selling the UCC as such, but Minnesota was
obliged to make its new code public, and was not obliged to
pay ALI when it did so.
When an agency proposes incorporation by reference that
will create legal obligations, it is strongly arguable that
it must at that time make the standard proposed to be
incorporated available to commenters in the rulemaking
process. Contemporary administrative law caselaw and
Executive Order 12,866 each impose transparency standards
more demanding than might appear from the simple text of 5
U.S.C. Sec. 553. One cannot comment on a standard whose
content is unknown. As the Pipeline Safety Trust observed in
its FDMS comments, ``incorporating standards by reference,
the way it is done now, has turned notice and comment
rulemaking into a caricature of what it was intended to be.''
Since agency guidance of means by which one might
successfully comply with independently stated regulatory
obligations is not law, an agency's identification of a
standard as one such means leaves interested parties an
option whether to refer to the standard or not. It creates no
legal obligation to reveal the contents of the standard used
as guidance, and the SDO' s copyright is secure. It is of
course also possible that there will be other identifiable
means of regulatory compliance--the reputed strength of the
American SDO process--so that recognition of the SDO's
copyright in relation to the guidance given creates no
monopoly power.
Use of standards as guidance also permits ready upgrading
of the guidance as soon as standards are revised; the
troubling problem of outdated standards enduring as legal
obligations (because fresh rulemaking has not been
undertaken) need not arise.
It is, then, regrettable that the statute you are
discussing draws no distinction between incorporation by
reference as mandatory obligation, and its use to provide
guidance. The most useful result of your workshop, in my
judgment, would be to push hard for the recognition of this
distinction--by interpretation of your statutory obligations,
if that seems possible, or by working for amendment. But I
can find no fault with, and much reason to support, the
obligation PHMSA has been placed under to assure free public
access, both at the stage of proposal and at the stage of
adoption, to standards whose incorporation by reference is
used to create legal obligations. The effect of that use of
incorporation is to transfer lawmaking into private hands
that operate in secret; and ``delegations of public power to
private hands [undermine] the capacity to govern.''
Respectfully submitted,
Peter L. Strauss,
Betts Professor of Law.

The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Wisconsin (Mr. Petri) that the House suspend the rules
and pass the bill, H.R. 2576.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. PETRI. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.

____________________