PHMSA Holds Workshop On Incorporation by Reference

Last week, NPGA participated in a workshop held by the Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on the subject of Incorporation by Reference (IBR) of voluntary consensus standards into federal regulations. The primary focus of the workshop was for PHMSA's Office of Pipeline Safety (OPS) to obtain input on how to implement Section 24 of the 2011 Pipeline Safety Act, which represents the agency's authorizing legislation for the next five years.

Section 24 specifies that by January 2013, PHMSA's OPS must not incorporate any standards by reference in the federal pipeline safety regulations unless those standards are available to the public free of charge. For purposes of Section 24, the applicable sections of the CFR are Title 49, Parts 191, 192 and 195. PHMSA staff clarified that the provisions of Section 24 are meant to be prospective and not retrospective, which means that existing referenced standards would not be impacted, but only those contained in future rulemakings.

One of the main standards that would impact the propane industry as it pertains to IBR is NFPA 58, which is incorporated by reference in Part 192 of the federal regulations and is used as the governing document should a conflict exist between NFPA 58 and Part 192 on similar requirements that exist in both documents. Additionally, we know that PHMSA is in the midst of developing a proposed rule that would seek to eliminate any conflicting primacy issues between NFPA 58 and Part 192.

The potential exists that if PHMSA were to finalize a rule on this subject resulting in elimination of all reference to NFPA 58, NPGA does not expect that to happen no  matter when a final rule is published. This is because NFPA representatives stated at the workshop that the organization makes all of its standards available for reading on the internet.  However, this availability does not permit downloading, printing, searching or any other functions that might be more useful to the user.

Nevertheless, while it was noted that by other commenters that prohibiting the other more user-friendly functions when viewing a standard on NFPA's website does not go far enough, PHMSA confirmed that NFPA's approach does satisfy the intent of Section 24 of the authorizing statutes.

Consequently, we would not expect that PHMSA would withdraw reference to an NFPA standard since they already deem it to be available to the public free of charge.



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