Continued Implementation of Recommendation 2011-5, Incorporation by Reference

Today’s edition of Federal Register contains yet another discrete example of how Recommendation 2011-5, Incorporation by Reference has encouraged expanded availability of copyrighted documents that have or may be incorporated by reference in federal regulations.  This example comes in the form of a notice published by the Pipeline and Hazardous Materials Safety Administration (PHMSA) extending the deadline for public comment on a proposed rule that would allow regulated manufacturers to use either of two privately-authored technical specifications to ensure compliance with PHMSA’s regulations.

If adopted, the rule would incorporate two voluntary consensus standards into PHMSA’s hazardous materials regulations.  The first is the Boiler and Pressure Vessel Code, Section XII, which is developed by the American Society of Mechanical Engineers (ASME).  Section XII is available for purchase for $380.00.

The second includes specifications drawn from the National Board Inspection Code (NBIC), which is developed by the National Board of Boiler and Pressure Vessel Inspectors. The material at issue is found in supplements to Parts 2 and 3 of the NBIC.  Parts 2 and 3 are available for purchase for $130.00 each.

In this instance, both standards development organizations have provided free online access to the relevant standards for the duration of the comment period!  Regulated and other interested parties who wish to read the standards can do so via links provided in PHMSA’s Notice of Proposed Rulemaking and today’s notice extending the comment deadline.  

ASME is providing free read-only access to Section XII of the Boiler and Pressure Vessel Code on its website.  Users must register, download a plug-in for Adobe Acrobat and Reader, and agree to ASME’s terms and conditions in order to download the protected PDF document.  As the instructions clearly explain, the document is only readable on the computer on which it is first opened.  I tried it, and although the process was not quite as straightforward as it could be, I was able to view the document at no cost.

The National Board of Boiler and Pressure Vessel Inspectors has simply posted the relevant supplements on its website, perhaps because the relevant material represents a relatively small portion of the NBIC.  No registration is required to access the document.

Congratulations to PHMSA and its standards developers for working together to make these standards available to regulated and other interested parties!  This is precisely the result the Administrative Conference hoped to achieve through Recommendation 2011-5.  And although this is only one discrete example of the power of collaboration to improve transparency, it is an important step in the recommendation’s ongoing implementation.

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