[Federal Register Volume 77, Number 120 (Thursday, June 21, 2012)]
[Notices]
[Pages 37472-37474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15102]
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DEPARTMENT OF TRANSPORTATION
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),
DOT.
ACTION: Request for information and notice of public workshop.
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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
http://phmsa.dot.gov.
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
information.
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.
Financial
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.
Practical
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
process.
Legal
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.
Policy
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,
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businesses and trade, and promote increased reliance on international
standards.
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]
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