Congress Recognizes the Promise of Recommendation 2011-5, Incorporation by Reference

In January 2012, shortly after the Administrative Conference adopted Recommendation 2011-5, Incorporation by Reference, Congress enacted the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011Section 24 of the Act prospectively prohibited the Pipeline and Hazardous Materials Safety Administration (PHMSA), a component agency of the Department of Transportation, from incorporating by reference into federal pipeline safety regulations any materials not available to the public online for free. The law gave the agency one year—that is, until January 2013—to implement the requirement, which was codified at 49 U.S.C. § 60102(p) and provided in full that:

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.

As a practical matter, the “documents or portions thereof” referred to in Section 24 are voluntary consensus standards—highly technical materials developed by private sector standards development organizations. 

The National Technology Transfer and Advancement Act of 1995 (NTTAA) and OMB Circular A-119 require PHMSA and other regulatory agencies to use voluntary consensus standards in lieu of developing “government-unique” technical standards solely to serve regulatory purposes.  This requirement is an integral part of federal standards policy.  It facilitates a public-private partnership in standards that yields significant benefits for federal agencies, regulated parties, and the public. 

For over a year and a half, PHMSA worked diligently to implement Section 24.  Voluntary consensus standards such as those affected by Section 24 are typically copyrighted, so PHMSA could not simply post copies of its incorporated standards on its website. It was forced to delay several rulemakings so that it could negotiate with its standards developers to provide the free access that would be required to update the incorporations by reference in its pipeline regulations.

In the end, however, Section 24 proved unworkable. Although PHMSA was able to secure free access agreements with several of its standards development organizations, some of those organizations were unable to agree.  The agency faced a quandary—in the circumstances, it was not possible for the agency simultaneously to implement Section 24, comply with the NTTAA and Circular A-119, and observe copyright.  Worst of all, PHMSA would no longer be able to incorporate by reference a number of standards essential to its public safety mission. 

Congress responded by enacting H.R. 2576, a bill amending Section 24 of the Pipeline Safety Act to give PHMSA the flexibility necessary to fulfill its competing legal obligations and protect public safety.  On July 16, 2013, on a vote of 405 to 2, with 26 abstaining, the House passed H.R. 2576.  On August 2, 2013, the Senate passed the bill by unanimous consent.  President Obama signed it into law on August 9, 2013. 

As amended by H.R. 2576, Section 24 still prohibits PHMSA from incorporating by reference any materials that are not available to the public for free.  But the law no longer requires that such access be provided “on an Internet Web site.”  And the requirement no longer applies to incorporations by reference in guidance—it is now limited to incorporations by reference in regulations.   Finally, the legislation extended the law’s effective date, giving PHMSA until January 2015 to complete implementation.

During the House of Representative’s debate on H.R. 2576, Representative Eddie Bernice Johnson, identified Recommendation 2011-5 as an alternative path forward for PHMSA and other agencies seeking to reduce the costs of public access to standards incorporated by reference, as required by the NTTAA and OMB Circular A-119:

While this [public-private] partnership is extremely valuable and should not be weakened in anyway, it is also important that the public have access to these standards, especially if they are going make their way into a regulation.

I believe there is a middle ground to be found here. In fact, the Administrative Conference of the United States offers a number of recommendations that federal agencies should consider.

One such recommendation is that federal agencies should work with standards development organizations to make their copyrighted materials reasonably available to interested parties during the rulemaking process. This could be accomplished by posting a read-only copy of the standard online for a limited period of time.

The bottom line is DOT needs to find a path forward so that the safety of the nation's pipelines is not eroded and the most up-to-date standards are utilized. H.R. 2576 provides DOT with the flexibility to find that path. I urge my colleagues to support HR. 2576. 

Cong. Rec. H. 4498 (July 16, 2013). 

PHMSA’s experience with Section 24 demonstrates the surprising complexity of incorporation by reference’s public access problem—and the promise of Recommendation 2011-5.  Other agencies, like PHMSA, can successfully collaborate with standards development organizations to make incorporated standards more available to the public.  In some circumstances, however, if the ideal of free online access cannot be achieved, agencies rightfully retain the flexibility to integrate private standards into public law as necessary to further the public interest and protect health and safety. 

*For more information on Incorpporation by Reference, see these previous blog posts:

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