Notice & Comment

House Approves Delay of Pipeline Industry Standards Posting, by Shannon Allen

On July 16, 2013, the House overwhelmingly passed, H.R. 2576, which would modify requirements regarding the availability of pipeline safety standards.  On June 28, 2013, subcommittee Chairman DenhamFull Committee Chairman Shustersubcommittee Ranking Member Brown, and Ranking Member Rahall, of the House Committee on Transportation and Infrastructure, introduced H.R. 2576.  The bill would address issues related to Section 24 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011(“the Act”).  The Act contains a requirement that all industry “technological standards” which are “incorporated by reference in guidelines and regulation” must be made accessible for no cost “on the internet.”

H.R. 2576 expressly:

  • extends the deadline for making standards available from one to three years so industry and the Pipeline and the Hazardous Materials Safety Administration (“PHMSA”) can properly implement the mandate,
  • deletes the term “guidance” from the provision to lessen the number of PHMSA documents that this provision applies too, and
  • deletes the term “on an internet Web site,” which will protect copyright and intellectual property from being released to the public on the internet, and allow more flexibility for access to incorporated documents.

The Committee explained that the purpose of H.R. 2576 is to “protect property rights while allowing for more flexibility in making documents transparent.”  The Committee also expressed Standards Development Organizations (SDOs) concerns regarding 1) “intellectual property rights,” 2) allowing “oversees competitors free access to valuable intellectual property,” and 3) the Act harming the capability of some SDOs to “continue to develop standards if they are unable to bring in revenue to offset the cost of development.”

On June 1, 2012, the Section of Administrative Law and Regulatory Practice (“the Section”), submitted comments, to the Office of Management and BudgetOffice of Information and Regulatory Affairs, concerning “the practice of incorporation by reference in agency regulations.”  In the Comments, the Section recognized that SDOs charge industry for crafting technical industry standards and that the government routinely incorporates by reference (“IBR”) these standards into regulations.  The Comments emphasized that “ready access” to IBR standards “is necessary for citizens to know what their government is doing and to hold the government accountable for serving – or not serving – the public interest.”  Transparency concerning IBR standards, the Section urged, is of special importance when the IBR standards are crafted by “private organizations rather than governmental agencies” (e.g. when American Petroleum Institute standards are incorporated by reference in pipeline safety rules).

The Section also suggested that“the long-term effects of requiring internet access to IBR standards” would not be asinjurious to SDOs as they anticipate.  The Section argued that 1) posting IBR standards online “would not prevent SDOs from enforcing their copyrights,” 2)“users who want an [IBR]standard in hard copy could still be required to buy it from the SDO,” and 3) “most users of incorporated standards will continue to buy them even if they are available in read-only form online . . .” because for many industries “there is simply no substitute for having . . . paper copies that can be highlighted, tabbed, carried around and referred to anywhere, anytime.”

H.R. 2576 was referred to the Senate Committee on Commerce, Science, and Transportation.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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