Incorporating by reference

Federal regulations Parts 49 CFR 192, 193
and 195 are not the only documents that must be followed to ensure the safety of pipelines. These parts each contain a code section (192.7, 193.2013, 195.3) incorporating by reference (IBR) numerous standards, codes, practices and publications that in effect become part of the regulations themselves. There are currently over 60 standards and specifications from nine different organizations incorporated by reference in regulations. Each of the IBR code sections in Parts 192, 193 and 195 lists the standards organization, the standard, and code section to which it applies.

Specific editions of each standard are incorporated and it is important to note that it may not be the most recent edition. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has the responsibility to ensure each standard meets PHMSA safety requirements in order to be referenced. If the standard does not measure up, then it will not be incorporated.

The most current edition of a standard cannot be automatically adopted, as this could change a regulation and bypass the safety analysis and rulemaking process. It would make the standards organization the rulemaking entity, which is the role of the government agency. To illustrate, editions of ASTM D2513 after 1987 have marking requirements for polyethylene pipe (PE) that do not meet the safety objectives of pipeline regulatory agency. In this case, the 1987 edition of ASTM D2513 continues to be referenced for marking in 49 CFR 192.63 and later editions (currently 1999) are used for all other aspects of PE pipe.

PHMSA recently incorporated two new editions of API Specification 5L “Specification for Line Pipe” (44th edition, 2007) and API 1104 “Welding of Pipelines and Related Facilities” (20th edition, errata, 2008). These two standards were added to the existing IBR listing, while also retaining the existing referenced editions, allowing pipeline operators to use current technology materials and practices

Even though a standard is listed in the IBR code section in Part 192, 193, and 195, it may be only a part of the standard is actually referenced in the particular code section.  The leading paragraphs in IBR sections of the regulations further explain, “When only a portion of a document is referenced, the remainder is not incorporated in this part.” As an example, the API 1104 standard is listed in 49 CFR 192.7 and 49 CFR 195.3; yet a review of the code sections referencing API 1104 indicates that only sections 5, 6 and 9 are applicable.

A concern operators have expressed is the level of compliance required when consensus standards, recommended practices, and publications are incorporated by reference. In a Notice of Proposed Rulemaking for Part 195 titled “Adoption of Industry Standards for Breakout Tanks,” the Research and Special Programs Administration (RSPA) stated:

“This proposal attempts to follow the intended
level of prescriptiveness between these Standards, Specifications, Codes, Recommended Practices, and Publications. However, this proposal provides clarification necessary for incorporation into Federal rules. Accordingly, for this rulemaking, operators of breakout tanks would be expected to comply with these industry classifications as follows:

•  Standard, Specification or Code – An operator would be expected to comply with the provisions as though they were printed in full in Part 195.

•  Recommended Practice – An operator would be expected to follow the provisions unless the operator notes in the procedural manual the reasons why compliance with all or certain provisions is not necessary for the safety of a particular breakout tank or tanks.

•  Publication – These provisions provide guidelines, safety practices and precautions for the operator’s review and consideration for inclusion in the procedural manual.”

PHMSA reaffirmed these compliance requirements in the Pipeline Operator Public Awareness Program final rule on May 19, 2005, by stating “PHMSA previously expressed (See Note 6) its position regarding operator consideration of practices that are incorporated into regulation by reference.” n