The benefits are minimal, and worse standards will be used.

Emily S. Bremer, “On the Cost of Private Standards in Public Law,” Kansas Law Review, https://kuscholarworks.ku.edu/bitstream/handle/1808/20310/5-Bremer_FinalPDFSheridan.pdf?sequence=1

A. The Benefits and Costs of Mandating Free Access

In its original, uncompromising formulation, Section 24 did expand the free online availability of private standards incorporated by reference into federal pipeline safety regulations. After all, PHMSA was able to negotiate free access agreements with seven of eleven (approximately 64%) of its standards development organizations. These agreements cover fifty (approximately 78%) of PHMSA’s sixty-four standards. Overall, these agreements may reduce the cost of a full set of PHMSA’s standards from $9,477.85 to $3,168.75. Although the maximum and minimum costs of PHMSA’s standards would remain the same, the agreements may reduce the average cost of PHMSA’s standards from $150.44 to $50.30.270

A more accurate quantitative analysis of Section 24’s effects, however, should evaluate the law’s success based on its marginal effect on the free online availability of PHMSA’s incorporated standards. That is, based on the degree to which the law expanded free access beyond the level provided independently of its requirements. As explained above, several of PHMSA’s standards developers offered free online access to their incorporated standards independently of PHMSA’s efforts to implement Section 24. Taking this into account, Section 24 can be credited with precipitating free access agreements with four (approximately 36%) of PHMSA’s eleven standards developers. Those agreements, however, cover just nine (approximately 14%) of PHMSA’s incorporated standards. In this accounting, the cost reduction achieved as a result of Section 24, although meaningful, appears to be more modest. Table 6 illustrates the point.

It is essential, however, to look beyond the numbers to qualitatively evaluate the effects of Section 24 on PHMSA’s operations and broader regulatory responsibility for ensuring federal pipeline safety. At the most basic level, the agency’s efforts to implement the law were costly. Substantial agency resources, particularly in terms of the agency staff’s time and attention, were devoted to the issue for over a year and a half. This has continued even under the amended version of the law, although perhaps to a somewhat lesser degree. In addition, the agency was forced to delay update to its regulations and incorporated standards. Many agencies find it challenging to keep incorporations up-to-date as newer editions of standards become available. PHMSA has a specific statutory responsibility to keep its incorporations up-to-date, and in the past it has taken a disciplined approach to updating that has enabled it to fulfill that responsibility.272 Section 24 derailed the agency in this respect, requiring it to delay rulemaking proceedings that had already been initiated.

The most troubling consequence of Section 24, at least in its original formulation, was that PHMSA was faced with the prospect of no longer being able to use some of its most important standards—standards that are important to industry regardless of whether they are integrated into federal regulations. ASME’s Boiler and Pressure Vessel Code, several sections of which are incorporated by reference into pipeline safety regulations, is one such standard. This code has been in continuous development by ASME since 1914.273 Adopted as law in all 50 states and incorporated by reference by numerous other federal agencies, the Boiler Code has been the de facto national standard since at least the 1950s and the de facto international standard since 1972.274 It is a large, complex code: its 14,000 pages are divided into 28 volumes. And it is used in many different industries, providing authoritative standards for everything from residential boilers and water heaters to equipment used in nuclear power plants. It is truly a living document, continuously updated and refined through addenda and interpretations, with a new edition released every three years. This requires an incredible amount of manpower and resources—multiple committees are devoted to maintaining the Code, and over 1,000 volunteers contribute their time and expertise to its development.