[Federal Register Volume 77, Number 120 (Thursday, June 21, 2012)]
[Pages 37472-37474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15102]



Pipeline and Hazardous Materials Safety Administration

[Docket ID PHMSA-2012-0142]

Pipeline Safety: Notice of Public Workshop To Discuss 
Implementing Incorporation by Reference Requirements of Section 24 of 
the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 

ACTION: Request for information and notice of public workshop.


SUMMARY: This notice is to advise interested and affected persons that 
PHMSA will conduct a public workshop to discuss Section 24 of the 
recently-passed Pipeline Safety, Regulatory Certainty, and Job Creation 
Act of 2011 (Act) and PHMSA's implementation challenges with Section 
24. Section 24 of the Act requires, within one year of enactment 
(January 2013), that PHMSA no longer incorporate, in whole or in part, 
voluntary consensus standards by reference into its regulations unless 
those standards have been made available free of charge to the public 
on the Internet. The workshop will provide interested persons with an 
opportunity to submit written and oral comments and participate in 
discussions concerning the legal, financial, policy, practical and 
other challenges with implementing Section 24 by January 2013.

DATES: The public workshop will be held on July 13, 2012.

ADDRESSES: The public workshop will be held from 8:00 a.m. to 3:00 p.m. 
EDT in the West Building, Oklahoma Room of the U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, 
Phone: 202-366-4400, Fax: 202-366-7041. Please visit http://phmsa.dot.gov and click on this public workshop to register. There is 
no registration fee to attend the public workshop. Name badge pickup 
and onsite registration will be available starting at 7:30 a.m. Refer 
to the meeting Web site for updated information, agenda, and times at 
    The public workshop will include an overview of the issue in the 
morning, and a panel discussion by various experts and stakeholders who 
are affected by regulations promulgated by PHMSA. After the discussion, 
time will be allotted for the general public to speak. All requests 
from the public to speak at the workshop must include a description of 
what will be said, contact information to be used to notify the 
requestor of the status of his/her request (phone number on which a 
message may be left, or email), and the subject/attention line (or on 
the envelope if by mail): ``Implementing Incorporation by Reference 
(IBR) Requirements of Section 24.'' Each participant will be allotted 
five minutes to speak. Please contact Jewel Smith, Office of Chief 
Counsel, to request to speak at the public workshop at 202-366-4400, or 
email at [email protected].
    Members of the public may submit written comments. Comments should 
reference Docket No. PHMSA-2012-0142. Comments may be submitted in the 
following ways:
     E-Gov Web Site: http://www.regulations.gov. This site 
allows the public to enter comments on any Federal Register notice 
issued by any agency. Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, 
Washington, DC 20590.
     Hand Delivery: DOT, Docket Management System, Room W12-
140, on the ground floor of the West Building, 1200 New Jersey Avenue 
SE., Washington, DC between 9:00 a.m. and 5:00 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: Identify Docket No. PHMSA-2012-0142 at the beginning 
of your comments. If you submit your comments by mail, submit two 
copies. If you wish to receive confirmation that PHMSA has received 
your comments, include a self-addressed stamped postcard. Internet 
users may submit comments at http://www.regulations.gov.
    Note: Comments will be posted without changes or edits to http://www.regulations.gov including any personal information provided. Please 
see the Privacy Act statement immediately following for additional 
    Privacy Act Statement: Anyone may search the electronic form of all 
comments received for any of our dockets. You may review DOT's complete 
Privacy Act Statement in the Federal Register published April 11, 2000 
(65 FR 19477).
    Information on Services for Individuals with Disabilities: For 
information on facilities or services for individuals with disabilities 
or to request special assistance during the workshop, please contact 
Jewel Smith at

[[Page 37473]]

202-366-4400, or by email at [email protected].
    Copies of the presentations will be available on the public 
workshop Web site and in the docket PHMSA-2012-0142 at http://www.regulations.gov, within 30 days following the workshop.
    Webcasting: The public workshop will be Webcast. Please refer to 
this public workshop at http://phmsa.dot.gov for more information and 
the link to the Webcast.

FOR FURTHER INFORMATION CONTACT: Jewel Smith at 202-366-4400, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On January 3, 2012, President Obama signed 
the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 
2011, Public Law 112-90 (Act). Section 24 of the Act requires, within 
one year of enactment (January 2013), that PHMSA no longer incorporate, 
in whole or in part, voluntary consensus standards by reference into 
its regulations unless those standards have been made available free of 
charge to the public on the Internet. Section 24 states ``Section 
60102, as amended by this Act, is further amended by adding at the end 
the following: `(p) Limitation on Incorporation of Documents by 
Reference.--Beginning 1 year after the date of enactment of this 
subsection, the Secretary may not issue guidance or a regulation 
pursuant to this chapter that incorporates by reference any documents 
or portions thereof unless the documents or portions thereof are made 
available to the public, free of charge, on an Internet Web site.' ''
    When Federal agencies write regulations, the National Technology 
Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; March 7, 
1996) and Office of Management and Budget (OMB) Circular No. A-119 
titled ``Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities'' directs 
them to use voluntary consensus standards, except when an agency 
determines that such use ``is inconsistent with applicable law or 
otherwise impractical.'' Voluntary consensus standards are technical 
standards that are developed, published and adopted by domestic and 
international organizations, which have collaborated to agree upon best 
technical practices. Generally, these standards are updated 
approximately every three to five years to reflect improvements to 
previous technology or practices. The standards, which are often 
hundreds or thousands of pages, are incorporated by reference into a 
regulation in whole or in part, saving the government money and 
shortening the length of the regulatory process by incorporating 
existing standards instead of creating government-unique standards. 
Incorporation by reference allows the voluntary consensus standards to 
be treated as if they were written into the regulations and treated as 
if they were published in the Federal Register and the Code of Federal 
Regulations. Thus, these standards have the effect of law and can be 
enforced accordingly.
    The policies in the Circular and the statutory language of the NTTA 
were intended to reduce to a minimum the reliance by agencies on 
government-unique standards and to rely on voluntary consensus 
standards (VCS), whenever possible, as well as keep the time and costs 
to write and issue standards reasonable on behalf of the Federal 
government. Federal agencies also received guidance from the Circular 
regarding agencies' participation in the various governmental and 
private sector bodies that develop consensus standards, which are 
referred to as standards developing organizations (SDOs).
    SDOs normally have a copyright or other intellectual property 
interest in the standards they develop, and therefore often charge a 
fee for access. Those who are governed by the regulations currently 
purchase the standards, in the instances where they are not made 
available for free. Without paying a fee, those who are affected by a 
regulation that incorporates a standard but are not regulated by it, 
may not have access to the laws that affect them. In some instances, a 
regulation may only incorporate a section, a chapter or other portion 
of the VCS; yet, an interested party must buy the entire VCS to access 
the incorporated text.
    Currently, PHMSA incorporates approximately 60 VCS by reference 
into 49 CFR Part 192--Transportation of Natural and Other Gas by 
Pipeline: Minimum Federal Safety Standards; 49 CFR Part 193--Liquefied 
Natural Gas Facilities: Federal Safety Standards; and 49 CFR Part 195--
Transportation of Hazardous Liquids by Pipeline. These VCS, in turn, 
incorporate by reference additional consensus standards. Therefore, 
purchasing all relevant standards could be significantly expensive for 
a small business, a non-profit organization or a public citizen.
    PHMSA has received correspondence regarding the implementation of 
Section 24 from stakeholders, including SDOs, regulated entities and 
public safety groups. Based on the correspondence and on PHMSA's 
operational capacity, budget and analyses, Section 24, at a minimum, 
would have the following effects.


     Costs to government to purchase incorporated standards for 
free public access would increase substantially.
     Impact to some SDOs for making their standards available 
without compensation would be substantial and immediate.
     Costs to government would increase dramatically and 
immediately if PHMSA must write its own standards or purchase the right 
to freely publish standards from SDOs.


     Volume and complexity of regulations would increase if the 
government wrote its own standards.
     There is a lack of government resources and technical 
expertise to draft standards technically equivalent to those available 
through existing SDOs.
     Time frames to write and promulgate rules would increase 
significantly if the government created its own standards.
     Government regulations with government-unique standards 
would not be likely to keep pace with technological and safety 
advancements made in the private sector.
     SDOs standards may get more candid input, and broader 
involvement, from stakeholders as standards are being developed in the 
current model than would be true under a government-unique standards 


     Small businesses would likely look to the Small Business 
Regulatory Enforcement Fairness Act, or other laws, to address any 
adverse impact to them arising from either the availability of 
standards, cost of standards, or increased time to promulgate 
regulations following PHMSA's implementation of Section 24.
     The NTTAA and OMB Circular A-119 should be analyzed 
further for reconciliation with the requirements of Section 24. 
Intellectual property laws play a critical role for both in the 
relationship between the government and the SDOs and in the 
relationship between the SDOs and its licensors or licensees.


     Likely inconsistency of U.S. and international standards 
would arise due to inability to incorporate VCS and difficulty in 
harmonizing government-unique standards. This inconsistency would be 
detrimental to safety,

[[Page 37474]]

businesses and trade, and promote increased reliance on international 
     Safety, compliance and enforcement could be compromised if 
the regulations become too unwieldy because government would be 
required to write its own standards, or if a regulated entity does not 
have access to free standards.
     Transparency in government requires that citizens have 
access to the laws that govern and affect them.
     Meeting Section 508 requirements that govern the 
accessibility of government documents for people with disabilities is 
also a consideration.
    PHMSA and stakeholders must continue to strive to reach a 
reasonable and feasible solution. Consequently, PHMSA will hold a 
public workshop to provide an open forum for exchanging information on 
the challenges associated with implementing the requirement of Section 
24. Specifically, this public workshop will facilitate a discussion 
among stakeholders to share their respective recommendations related to 
the following objectives:
    1. Provide an overview to the public, regulated entities, other 
Federal and state regulatory agencies, legislators in Congress, 
advocacy groups, public safety professionals, the international 
community and the standards developing organizations about the legal, 
practical, financial and policy considerations involved with 
implementing Section 24.
    2. Identify constraints, related costs and issues with implementing 
Section 24 by January 2013.
    3. Collect public input that will help guide PHMSA and DOT to a 
reasonable, efficient, and sound implementation strategy and plan.

Preliminary Agenda for the Public Workshop

     Event Objectives/Summary of Ongoing Activities.
     Panel 1--What is IBR? (Overview of the NTTAA, OMB Circular 
A119, Section 24 of the Pipeline Safety, Regulatory Certainty, and Job 
Creation Act of 2011, and Current Issues Related to Implementing 
Section 24).
     Panel 2--Overview of PHMSA's IBR Usage and Its Impact on 
Safety and Costs.
     Panel 3--Facilitated Discussion Among Participants.
    Please note that there are objectives for each panel and that they 
are posted on the meeting Web site at http://phmsa.dot.gov.

    Issued in Washington, DC, on June 15, 2012.
Linda Daugherty,
Deputy Associate Administrator for Policy and Programs.
[FR Doc. 2012-15102 Filed 6-20-12; 8:45 am]