How IBR Petitions Get Developed within CGA
July 10, 2019
As we explained in our recent article, Decoding the Mysteries of ‘IBR’, over the years many of the Compressed Gas Association’s safety publications have been successfully incorporated into federal regulations by reference.
But how exactly does this process work? What are the steps that CGA Committees follow to submit a petition to incorporate a publication by reference? In this article, we’ll explain the process for Incorporation by Reference (IBR) from a petition’s initial inception within a Committee through to final submission to a specific regulatory agency.
But first, here’s a quick reminder about the definition of IBR. For our purposes, IBR is an administrative drafting tool that enables federal agencies to take CGA’s voluntary consensus standards developed for the compressed gas industry, and make these published materials federally enforceable.
When Should Committees Declare the Intent to Petition a Publication?
The process to develop a petition to incorporate a CGA publication by reference should start as early as possible. In the case of an existing publication, the intent to petition should be declared one year prior to that publication’s next scheduled revision. In the case of a new publication, the intent to petition should be announced when development of the publication begins.
While it is possible for a committee to declare the intent to petition a publication midway through or at the end of a document’s revision process, committee members are strongly encouraged to declare their intent to petition as early as possible. This helps to provide sufficient time for those petitions that require significant preparation of information before submittal.
What are the Steps to Develop an IBR Petition?
When a committee declares its intent to submit a petition for IBR for a new publication or publication that has not previously been incorporated, a New Work Item Proposal (NWIP) must be submitted to, and approved by, the standing committee.
The committee shall review and approve or reject the NWIP for the petition, with all voting members of the standing committee registering a vote. If all voting members are not present at the time of the vote on the NWIP, CGA staff will follow up with absent committee members to register their vote.
In the case of a revised publication that has previously been petitioned and incorporated by reference, an NWIP is not required. Instead, the committee must motion and approve the intent to petition this publication for IBR, which shall be recorded in the committee meeting minutes.
If approved, the NWIP or the motion – as well as the voting results – will be submitted to the Standards Council for review and vote. If the intent to petition is approved, work on the petition can begin. If either the standing committee or Standards Council rejects the NWIP or motion, no further work will be completed to petition a publication for IBR.
Committees may choose to develop a petition in parallel with the development of the publication itself – or more commonly, may elect to wait until the new or revised publication has been released before beginning work on a petition.
The publication process typically includes the following steps:
- drafting of the publication (if new)
- review of enforceable language
- submission of proposed changes by the cutoff date
- ad hoc committee review and resolution of proposed changes
- CGA staff’s editorial and technical review
- Standards Council review and approval
- preparation for final publication
What Petition Materials Need to be Developed?
When development of the petition begins, that effort will be organized under the approved petition work item (as opposed to the related publication work item).
A petition development task force will then be created to develop a cover letter and all required petition materials. These materials typically include a statement describing the need for the new edition of the publication to be referenced (technical value, increase in safety, regulatory enforceability), an overall description of major changes from the referenced edition to the current edition, and any technical substantiation of positions taken.
Additionally, petitions to the U.S. Department of Transportation must follow the directions provided in 49 CFR 106.100, Required information for a petition for rulemaking. We’ve quoted that language below for your quick reference:
(a) You must include the following information in your petition for rulemaking:
(1) A summary of your proposed action and an explanation of its purpose.
(2) The language you propose for a new or amended rule, or the language you would delete from a current rule.
(3) An explanation of your interest in your proposed action and the interest of anyone you may represent.
(4) Information and arguments that support your proposed action, including relevant technical and scientific data available to you.
(5) Any specific cases that support or demonstrate the need for your proposed action.
(b) If the impact of your proposed action is substantial, and data or other information about that impact are available to you, we may ask that you provide information about the following:
(1) The costs and benefits of the proposed action to society in general, and identifiable groups within society in particular.
(2) The direct effects, including preemption effects under section 5125 of Federal hazardous materials transportation law, of your proposed action on States, on the relationship between the Federal government and the States, and on the distribution of power and responsibilities among the various levels of government. (See 49 CFR part 107, subpart C, regarding preemption).
(3) The regulatory burden of your proposed action on small businesses, small organizations, small governmental jurisdictions, and Indian tribes.
(4) The recordkeeping and reporting burdens of your proposed action and whom they would affect.
(5) The effect of your proposed action on the quality of the natural and social environments.
What Are the Steps to Finalize and Submit an IBR Petition?
After the cover letter and all petition materials have been completed, CGA staff will then conduct a final editorial and technical review. All materials will then be submitted to the standing committee and subsequently to Standards Council for approval.
Once the Standards Council has approved the petition, CGA staff will prepare, print, and submit the final petition to the specific regulatory agency for consideration.