[Congressional Record (Bound Edition), Volume 159 (2013), Part 8]
[House]
[Pages 11494-11501]
[From the U.S. 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

[[Page 11495]]

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 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

[[Page 11496]]

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 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.
                                  ____

         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. 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.
                                  ____

         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. 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.
                                  ____

         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.

     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

[[Page 11497]]

     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 
     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.
                                  ____

         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 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 Government-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.
                                  ____

         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.

     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.

[[Page 11498]]

       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 to 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 H.R. 2576.
  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, 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.

[[Page 11499]]

       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.
       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

[[Page 11500]]

     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 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

[[Page 11501]]

     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.

                          ____________________