[Federal Register Volume 85, Number 74 (Thursday, April 16, 2020)]
[Proposed Rules]
[Pages 21140-21159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05721]
[[Page 21140]]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 190, 194, and 195
[Docket No. PHMSA-2018-0047]
RIN 2137-AF37
Pipeline Safety: Regulatory Reform for Hazardous Liquid Pipelines
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: PHMSA is soliciting public comment on proposed amendments to
the Federal Pipeline Safety Regulations for the safety of hazardous
liquid pipelines that would revise the requirements for facility
response plans, revise the definition for accidents, and consider
repealing, replacing, or modifying other specific regulations. The
intent of these changes is to reduce regulatory burdens and improve
regulatory clarity without compromising safety and environmental
protection.
DATES: Comments on this notice are due by June 15, 2020.
ADDRESSES: Submit comments, identified by Docket No. PHMSA-2018-0047,
using any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: U.S. DOT Docket Management System, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590-0001.
Hand-deliver/courier: Available between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this proposed rule. If you submit your comments by
mail, submit two copies. If you wish to receive confirmation that PHMSA
has received your comments by mail, include a self-addressed stamped
postcard.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to http://www.regulations.gov, as described in
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed
at https://www.transportation.gov/privacy.
Confidential business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments responsive to this notice contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this notice, it is important that you clearly designate
the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask
PHMSA to give confidential treatment to information you give to the
agency by taking the following steps: (1) Mark each page of the
original document submission containing CBI as ``Confidential''; (2)
send PHMSA, along with the original document, a second copy of the
original document with the CBI deleted; and (3) explain why the
information you are submitting is CBI. Unless you are notified
otherwise, PHMSA will treat such marked submissions as confidential
under the FOIA, and they will not be placed in the public docket of
this notice of proposed rulemaking (NPRM). Submissions containing CBI
should be sent to Sayler Palabrica at [email protected] or 1200
New Jersey Ave SE, E24-447, Washington, DC 20590. Any commentary that
PHMSA receives which is not specifically designated as CBI will be
placed in the public docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: For technical information, contact
Chris Hoidal, Senior Technical Advisor, by telephone at 303-807-8833 or
by email at [email protected].
For general information, contact Sayler Palabrica, Transportation
Specialist, by telephone at 202-366-0559 or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background
III. Request for Input
IV. Proposed Amendments
V. Availability of Standards Incorporated by Reference
VI. Regulatory Analyses and Notices
I. EXECUTIVE SUMMARY
A. Purpose of This Rulemaking Action
PHMSA is proposing to amend the Federal Pipeline Safety Regulations
at 49 CFR parts 190, 194, and 195 to reduce the regulatory burden on
pipeline systems transporting hazardous liquids. The proposed
amendments in this rulemaking include regulatory relief actions
identified by internal agency review, petitions for rulemaking, and
public comments on DOT's regulatory reform and infrastructure
notifications titled, ``Transportation Infrastructure: Notice of Review
of Policy, Guidance, and Regulation'' (82 FR 26734; June 8, 2017), and
``Notification of Regulatory Review'' (82 FR 45750; Oct. 2, 2017).
PHMSA is requesting comment on the proposed amendments.
B. Summary of the Proposed Amendments
PHMSA is proposing to repeal, replace, or revise sections in parts
190, 194, and 195 to reduce regulatory burdens. Part 190 specifies
procedures during inspections and investigations, part 194 contains the
requirements for preparing and submitting oil spill response plans, and
part 195 prescribes the safety and reporting requirements for pipelines
transporting hazardous liquids or carbon dioxide. In part 190, PHMSA is
proposing to clarify the requirements for producing records during an
inspection or investigation and reduce the burden required to submit
confidential commercial information under most circumstances. In part
194, PHMSA is proposing amendments that would streamline the oil spill
response plan requirements and clarify or eliminate requirements that
may be confusing or redundant. In part 195, PHMSA is proposing
amendments that would relieve accident reporting burdens, allow remote
monitoring of rectifier stations, and clarify integrity management (IM)
guidance.
C. Costs and Benefits
PHMSA projects that, if promulgated, the amendments in this
proposed rule would result in estimated annualized net cost savings of
$273,242 for regulated entities based on a 7 percent discount rate.
PHMSA has determined that the proposed changes would not increase risks
to public safety or the environment.
In accordance with 49 U.S.C. 60102, Executive Order (E.O.) 12866,
and DOT policy, PHMSA has prepared an initial assessment of the costs
and benefits of these proposed changes as well as reasonable
alternatives. PHMSA has released the preliminary regulatory impact
analysis (RIA) concurrent with this NPRM for public review and comment,
and it is available in the docket.
II. Background
In response to E.O. 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' E.O. 13783, ``Promoting Energy Independence and
Economic Growth,''
[[Page 21141]]
and E.O. 13777, ``Enforcing the Regulatory Reform Agenda,'' DOT issued
two notices soliciting regulatory reform ideas from the public. The
first notification (82 FR 26734; June 8, 2017) requested public comment
on existing regulations that may be obstacles to transportation
infrastructure projects. DOT received more than 200 comments in the
transportation infrastructure docket, including six comments that are
relevant to the Federal Pipeline Safety Regulations.\1\ The second
notification (82 FR 45750; Oct. 2, 2017) requested comment on existing
rules and other agency actions that may be eligible for repeal,
replacement, suspension, or modification without compromising safety.
DOT asked the public to identify agency actions that eliminate jobs or
inhibit job creation; are outdated, unnecessary, or ineffective; impose
costs that exceed benefits; create a serious inconsistency or otherwise
interfere with regulatory reform initiatives and policies; could be
revised to use performance standards in lieu of design standards; or
potentially unnecessarily encumber energy production. After a 30-day
comment period, DOT re-opened the comment period until December 1, 2017
(82 FR 51178; Nov. 3, 2017). Of the nearly 3,000 public comments
received, approximately 30 were related to the Federal Pipeline Safety
Regulations.\2\
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\1\ Docket No. DOT-OST-2017-0057.
\2\ Docket No. DOT-OST-2017-0069.
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To support DOT's regulatory reform efforts, PHMSA's Office of
Pipeline Safety (OPS) reviewed, considered, and identified existing
regulations that could be improved, revised, repealed, or streamlined.
OPS also considered the public comments submitted in response to DOT's
June 8, 2017 notice soliciting comments about transportation
infrastructure, DOT's October 2, 2017 public notice soliciting comments
on regulatory reform, and petitions for rulemakings. These amendments
to PHMSA regulations are being proposed based on the input received in
response to those notifications.
III. Request for Input
PHMSA is seeking public comments on the regulatory reform actions
proposed in this NPRM. PHMSA will consider all relevant and substantive
comments but encourages interested parties to submit comments that: (1)
Identify the proposed amendments being commented on and the appropriate
section numbers; (2) provide justification for their support or
opposition to the proposed amendments, especially data on safety risks
and cost burdens; and (3) provide specific alternatives if appropriate.
IV. Proposed Amendments
A. Part 190 Pipeline Safety Enforcement and Regulatory Procedures
The Pipeline Safety Laws (49 U.S.C. 60101 et seq.) require pipeline
operators to maintain records, make reports, and provide certain
information to PHMSA upon request. PHMSA is proposing to amend its
regulations under part 190 to clarify the requirements for producing
records during an agency inspection or investigation in a way that
recognizes technological innovation. The proposed changes would clarify
that new technology is permitted while ensuring that PHMSA can
effectively enforce the Federal Pipeline Safety Regulations.
Section 190.203 Inspections and investigations
The Pipeline Safety Laws require operators to make records, reports
and information available to PHMSA upon request and provide the
information that is required in order to decide whether or not an
operator is in compliance.\3\ PHMSA is proposing to clarify that
operators may submit records electronically, provided that the method
used to submit information allows PHMSA to download and print non-
redacted copies of records in their original format (the file format
used by the application that created the electronic document) and does
not impose limitations that impede PHMSA's ability to enforce the
Pipeline Safety Laws. PHMSA recognizes that record production
technology will continue to evolve and intends to define document
production standards in this proposed rule in a way does not create a
barrier to innovation in record production technology. Thus, PHMSA's
proposed change would set consistent minimum standards for providing
records to PHMSA and give operators the choice to select the best
method to deliver the information that PHMSA needs to enforce the
Pipeline Safety Laws. This change does not have direct safety effects
but will improve the efficiency of inspections and investigations.
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\3\ 49 U.S.C. 60117(b).
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PHMSA encourages the use of technology that makes sending and
receiving records more convenient; however, that goal is undermined by
a lack of clear expectations for the quality and usability of
information submitted to the agency. This lack of clear expectations
leads to unnecessary delays and burdens on both operators and
inspectors when PHMSA requests operators manually re-submit records
that were provided in an unusable format.
Historically, pipeline operators provided PHMSA with paper copies
of records during the agency's routine inspections and accident
investigations. As technology has evolved, operators have provided
electronic and hard copies of company records to PHMSA. Recently, some
operators have requested that PHMSA access and review documents related
to incidents or investigations through an operator-controlled
electronic record delivery system (often referred to as a ``portal'').
PHMSA recognizes that electronic systems present an opportunity to
deliver operator records to PHMSA in a cost-effective manner. However,
some electronic systems alter the usability of documents in a way that
limits PHMSA's ability to carry out its statutory responsibilities
under the Pipeline Safety Laws. For example, some portals are ``view
only'' and do not allow PHMSA the ability to download, print, or search
important operator records; many of these documents must be analyzed
and compared with other documents, and cannot be adequately reviewed by
viewing on a computer screen one page at a time. Other features that
have impeded PHMSA's review of documents include automatic
watermarking, intrusive monitoring systems, and systems that convert
documents to un-searchable PDFs.
In order to maintain consistency between operator-submitted paper
and electronic records, PHMSA proposes to place certain minimum
standards on the capabilities of an operator's record production and
delivery systems. Specifically, PHMSA proposes to require that, for any
records that an operator chooses to submit to PHMSA using an electronic
record delivery system or similar technology, the electronic record
delivery system or technology must: (1) Allow PHMSA to download and
print all records on the portal from any U.S.-based internet access
point without redacting or altering the document (e.g., watermarking,
date and time-stamping with username/access date information); (2) not
remove or restrict document functionality that is available to the
operator for each document, meaning that if the original format of a
document allows for the ability to magnify a document while maintaining
legibility; search a record for text; or search for specific records by
name, date, or file type, then those same capabilities must be
available to PHMSA personnel; and (3) provide PHMSA with a point of
[[Page 21142]]
contact who is responsible for addressing reported problems with the
system or any record displayed on the system. If the point of contact
is not a site administrator, then PHMSA would expect the point of
contact to have direct access to a site administrator responsible for
fixing problems as expeditiously as possible.
For any electronic record delivery system that PHMSA accesses for
the purposes of enforcing the Pipeline Safety Laws, operators must: (1)
Disable the use of activation codes that must be entered to begin any
individual session; (2) disable any unnecessary internet connectivity
requirements to view downloaded documents; (3) disable any document
tracking features; (4) ensure that any ``time-out'' feature be set to a
reasonable amount of time, but no shorter than one hour; and (5) not
impose any pre-access conditions (e.g., through log-in agreements or
notifications) that hinder PHMSA's ability to use records displayed on
the portal. If PHMSA determines that an operator's electronic record
delivery system would impede or otherwise prevent PHMSA's efficient
review of records in an inspection or investigation, or if the system
is otherwise in conflict with PHMSA regulations, PHMSA may order an
operator to deliver records via an alternative method or in an
alternative format.
The proposed rule gives operators the choice to select the best
method to deliver information to PHMSA and does not require operators
to modify records to meet these requirements. PHMSA proposes to require
operators submit electronic records in their original format unless
PHMSA allows an alternative format. Operators must not alter documents
in a way that impedes PHMSA's ability to effectively or efficiently
review the documents. For example, if a particular report is in PDF
format, PHMSA would not expect an operator to convert it to a word
document before submitting it to PHMSA through an electronic system. On
the other hand, an electronic system that converts all submitted
documents, including searchable spreadsheets or word processor
documents, to PDF form would not be acceptable.
Clear requirements for electronic record delivery systems will
reduce delays for both operators and PHMSA. The Pipeline Safety Laws
require operators to make records, reports, and information available
upon request in order to assist PHMSA's determination regarding whether
an operator is in compliance with the Pipeline Safety Laws (49 U.S.C.
60117(b)). The proposed rule ensures that operators do not spend time
creating systems that are unusable by PHMSA and allows the agency to
efficiently access and use electronic records.
Section 190.343 Information made available to the public and request
for protection of confidential commercial information
Section 190.343 establishes the procedures for operators to request
confidential treatment of commercial information they submit to PHMSA,
including a requirement for operators to provide PHMSA with a redacted
copy of the records being submitted and an explanation as to why the
information is confidential commercial information. PHMSA is proposing
to revise these requirements to reduce the burden associated with
redacting documents containing confidential information. This change
has no direct safety effects but may improve the efficiency of
inspections and investigations.
In response to DOT's notification of regulatory reform (82 FR
45750; Oct. 2, 2017), the American Petroleum Institute (API) and the
Association of Oil Pipelines (AOPL) expressed concerns about the need
to provide a copy of redacted records under Sec. 190.343(a),
especially records that are requested during inspections and
investigations. API and AOPL stated, ``the process of redacting
information from voluminous documents is very burdensome and costly,
and if a Freedom of Information Act (FOIA) request is not made for the
documents, then dedicating significant resources to such an effort is
unwarranted.'' Pipeline operators have expressed similar concerns to
PHMSA staff.
PHMSA understands this concern and also has observed that redaction
requirements can lead to delays during investigations. For these
reasons, PHMSA proposes to provide operators the option, but not the
obligation, to submit a redacted copy of records containing
confidential commercial information submitted for purposes other than
rulemaking or special permit proceedings, such as in response to a
PHMSA inspection or investigation. PHMSA proposes to continue to
require operators to submit a redacted copy of records submitted in
rulemaking proceedings and in applications for special permits and
renewals, since those documents must be placed in a public docket. The
proposed revision results in cost savings in situations in which it may
be burdensome and costly for operators to redact records prior to
submission. In other situations, operators may prefer to provide PHMSA
with a second copy that has confidential commercial information
redacted.
In addition to the changes to redaction requirements, PHMSA also
proposes to clarify what is required to assert that information is
confidential commercial information. Simply marking records
``confidential'' under a general claim of confidentiality is not
sufficient for the purposes of claiming confidential commercial
information. PHMSA proposes to require operators provide a specific
explanation of why the information is confidential commercial
information. The proposed rule also clarifies Sec. 190.343 by
eliminating superfluous language in paragraph (b) that indicates under
what conditions PHMSA will treat information as confidential.
B. Part 194 Response Plans for Onshore Oil Pipelines
PHMSA promulgated part 194 in response to the mandates in the Oil
Pollution Act of 1990 (OPA 90).\4\ OPA 90 requires any operator of a
ship or facility, including pipeline facilities, that could cause
substantial environmental harm by discharging oil into or on the
navigable waters or adjoining shorelines of the United States, to
prepare and submit a facility response plan (FRP) for a worst-case oil
discharge. Part 194 requires operators of onshore oil pipeline
facilities to prepare an FRP and establishes the minimum requirements
for what the operators must include in their FRPs. In all FRPs, the
operator must describe a ``worst-case'' scenario as well as the
appropriate response to that discharge, including details regarding the
equipment and personnel that will be made available during the
specified timeframe following the discharge to appropriately contain
and clean up the spill. Part 194 also requires operators to run drills
and exercises based on their FRPs to prepare for an acutal release.
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\4\ The Oil Pollution Act of 1990 (OPA 90) (33 U.S.C. 1321)
amended the Federal Water Pollution Control Act (FWPCA).
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PHMSA is proposing several changes to part 194 to streamline how
operators of onshore oil pipelines must plan, prepare, and submit FRPs
as required by OPA 90. The proposed changes are intended to improve the
clarity of the requirements and applicability of part 194, codify
current policy, ensure consistency with other federal requirements and
terminology, and reduce regulatory burdens without compromising safety.
Notably, this NPRM would clarify the applicability of part 194 by
removing a list of exemptions that are incorrectly defined
[[Page 21143]]
as ``exceptions'' in Sec. 194.101. Section 194.101(b)(1) lists
``exceptions'' to the requirements of part 194. However, these
``exceptions'' are not applicable if the pipeline facility could cause
``substantial'' or ``significant and substantial harm'' to navigable
waters or adjoining shorelines. Since part 194 only applies to pipeline
facilities that could affect navigable waterways or adjoining
shorelines, these are not true exceptions. Partially removing the
``exceptions'' as currently written would clarify the applicability of
part 194 in a manner consistent with OPA 90.
PHMSA is proposing to move the ``exception'' currently listed in
Sec. 194.101(b)(2)(ii) to Sec. 194.3(b). This exemption applies to
pipelines 6\5/8\ inches or less in diameter, ten miles or less in
length, and where the operator determines that it is unlikely that the
worst-case discharge (WCD) from any point on the line section would
adversely affect, within 4 hours after the initiation of the discharge,
any navigable waters, public drinking water intake, or environmentally
sensitive areas. Due to the lower risk presented by these low-capacity
pipelines that are removed from protected resources, PHMSA wishes to
explicitly recognize the possibility that these pipelines may not
require a plan.
Additionally, PHMSA is proposing to remove the terms ``substantial
harm'' and ``significant and substantial harm'' from the regulations
and remove Sec. 194.103 in its entirety. Currently, part 194 requires
an operator to make a distinction between the types of potential harm
an oil spill could cause, include a statement in its FRP if certain
conditions are met, and submit a plan accordingly. OPA 90 requires
submission of plans for facilities that could cause ``substantial
harm'' or ``significant and substantial harm,'' but does not expressly
require approval of plans for ``substantial harm'' facilities. PHMSA
has historically reviewed plans for both types of facilities for
accuracy and completeness, communicated those findings to the
operators, and required correction where needed. Furthermore, the
requirements in part 194 for pipeline facilities that could cause
``substantial harm'' are the same as the requirements for pipeline
facilities that could cause ``significant and substantial harm.''
Distinguishing between the two creates unnecessary categories and some
degree of burden to operators and PHMSA. PHMSA proposes to remove these
terms, clarify the applicability of part 194 in Sec. 192.3, and thus
eliminate a minor regulatory burden associated with justifying the
appropriate determination. This change would be consistent with the
authorizing legislation, OPA 90, and does not compromise safety since
the distinction between ``substantial harm'' and ``significant and
substantial harm'' has no effect on the plan requirements.
PHMSA is also proposing additional provisions to make it easier for
an operator to prepare and submit response plans. These changes would
include: (1) Allowing operators to use spill modeling for estimating
WCDs; (2) requiring operators to submit plans electronically; (3)
allowing operators to submit DOT annexes to existing response plans
prepared for state regulators; and (4) clarifying that an operator must
submit plans before putting a pipeline facility in service rather than
prior to beginning construction. PHMSA is also proposing technical and
editorial changes for consistency and clarity. The following is a
section by section discussion of the proposed changes.
Section 194.3 Applicability.
Section 194.3 defines the applicability of part 194. Part 194
applies to onshore oil pipeline facilities that, because of its
location, the operator determines that oil discharged from any point on
the pipeline facility could reasonably be expected to adversely affect
any navigable waters in the U.S. or adjoining shorelines. PHMSA is
proposing to revise this section to clarify that part 194 applies to
pipeline facilities that could affect the navigable waters of the U.S.
or adjoining shorelines within 12 hours, with an exception for smaller-
diameter or shorter pipelines that cannot adversely affect navigable
waters within 4 hours.
These changes would preserve the current exceptions in Sec.
194.101(b) for: (1) Pipeline facilities where a discharge would not
affect water within 12 hours of the release, and (2) pipeline
facilities 6\5/8\ inches or less in diameter and 10 miles or less in
length where a discharge would not be able to affect water within 4
hours of the discharge. The current exception in Sec. 194.101(b)(1) is
not explicitly retained because that exception only applies if the
pipeline is not in proximity to navigable waters. Since part 194 does
not apply to pipelines that cannot affect navigable waters, the
exception in Sec. 194.101(b)(1) is meaningless. This change will,
therefore, not have an effect on the number of operators subject to the
part 194 requirements since all FRPs currently submitted to PHMSA are
for pipelines that are greater than 6\5/8\ in diameter and could affect
navigable waters within 12 hours of a release or are less than 6\5/8\
in diameter and can affect navigable waters within 4 hours of a
release. The proposed changes will provide increased clarity regarding
the applicability of part 194 without affecting safety.
These proposed amendments will also clarify that part 194 is not
applicable to operators of onshore oil pipeline facilities that are
6\5/8\ inches or less in diameter and greater than 10 miles in length
or greater than 6\5/8\ inches in diameter and 10 miles or less in
length that do not affect navigable waters or adjoining shorelines. The
existing exceptions omit the possible combinations of small diameter
pipelines longer than 10 miles in length and larger diameter pipelines
10 miles or less in length. This incorrectly implies that operators of
those onshore oil pipelines must submit response plans even if they
would not affect navigable waters or adjoining shorelines. Given that
OPA applies to facilities that could affect navigable waters and
adjoining shorelines, an FRP is not required for such facilities.
Section 194.5 Definitions
Section 194.5 provides definitions specific to part 194. PHMSA is
proposing to add, revise, and remove several definitions from this
section to ensure the terms used throughout part 194 are clear and
accurate. PHMSA also believes that amending certain definitions in part
194 will help improve the readability of the part.
Area Contingency Plan (ACP) and National Contingency Plan (NCP)
PHMSA proposes to add definitions for National Contingency Plan
(NCP) \5\ and Area Contingency Plan (ACP) in part 194. The proposed
rule defines the NCP as the National Oil and Hazardous Substances
Pollution Contingency Plan codified in 40 CFR part 300. The NCP
provides the national-level organizational structure and procedures for
preparing for and responding to oil spills and other hazardous
releases. PHMSA also proposes to define ACP as a regional response plan
prepared in accordance with OPA 90 and the NCP.
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\5\ 40 CFR part 300, National Contingency Plan, NCP.
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Various environmental laws and regulations, primarily the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) \6\, OPA 90, and the NCP establish tiered classifications of
response plans to ensure that the government and other entities have
adequate protocols and resources in place to respond to an oil spill
[[Page 21144]]
regardless of the scope of the spill. The broadest response plan is the
nationwide NCP, which was created by CERCLA and is codified by the
Environmental Protection Agency in 40 CFR part 300. ACPs are regional
response plans required by OPA 90 which cover smaller geographical
areas defined in the NCP. The most detailed plans are facility-specific
response plans, which must be consistent with the applicable ACPs and
the NCP. Since PHMSA uses the terms ACP and NCP throughout part 194,
the regulations would benefit from spelling out and defining these
terms.
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\6\ Pub. L. 95-510, aka Superfund.
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Worst-case Discharge
Part 194 requires an operator to determine a ``worst-case
discharge'' (WCD) volume to account for in its FRP. The WCD is the
largest of three elements: (1) Largest discharge from a line section
calculated by adding the possible amount released following a pipeline
failure before a pipeline is shutdown with the line section drain down
after shutdown; (2) volume of largest breakout tank or battery of tanks
with credits for preventative measures; or (3) largest historic
discharge. Currently, the WCD is defined as the largest foreseeable
discharge of oil, including discharge from fire or explosion, in
adverse weather conditions. PHMSA is proposing to remove the phrase
``in adverse weather conditions'' from the definition of WCD and
instead require operators consider adverse weather in Sec. 194.107
when developing the plan. Potential weather conditions have no effect
on calculation for the volume of oil discharged from a pipeline
facility, but is an important consideration for planning the spill
response itself. This change may therefore improve the quality of FRPs.
Specified Minimum Yield Strength
PHMSA is proposing to remove the definition of ``specified minimum
yield strength'' since the term only appears in Sec. 194.101, which is
a section PHMSA is proposing to remove. This definition, therefore,
would no longer be necessary.
Tertiary Containment
PHMSA is proposing to add a definition for ``tertiary
containment,'' which appears in Sec. 194.105 but is not defined.
PHMSA's interpretation \7\ of ``tertiary containment'' is based on the
definition of secondary containment in the National Fire Protection
Association (NFPA) standard NFPA 30, ``Flammable and Combustible
Liquids Code,'' which PHMSA would also incorporate by reference into
part 194. PHMSA proposes to codify this term, consistent with PHMSA's
previous interpretation, as a dike, berm, or other physical containment
outside of the secondary containment. NFPA 30 defines secondary
containment for piping systems as containment that is external to and
separate from the primary piping system; a secondary containment tank
is defined as one that has an inner wall and an outer wall with a means
for monitoring the space between the walls for leaks.
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\7\ PHMSA. Interpretation Response #PI-14-0010, 10/6/2014.
https://www.phmsa.dot.gov/regulations/title49/interp/PI-14-0010.
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Contract or Other PHMSA-approved Means
PHMSA is proposing to revise the definition of ``contract or other
approved means'' to clearly define which methods for documenting the
availability of adequate response resources, other than a signed
contract with an oil spill removal organization (OSRO), are approved.
PHMSA also proposes to clarify that documentation of active membership
in cooperative or mutual aid agreements is also approved. The proposed
revisions add clarity and transparency to PHMSA's review and approval
of plan documentation.
Onshore Oil Pipeline Facilities
PHMSA proposes amending the definition of ``onshore oil pipeline
facilities'' to clarify the scope of the part 194 regulations in light
of potential ambiguity regarding the proper classification of pipelines
under the CWA.
The CWA defines ``onshore facility'' as ``any facility . . . of any
kind located in, on, or under any land within the United States other
than submerged land.'' 33 U.S.C. 1321(a)(10). The President has
delegated to the Secretary of Transportation the authority to review
and approve response plans for ``transportation-related'' onshore
facilities, including pipelines. See E.O. 12777, section 2(d)(2) (Oct.
18, 1991). With respect to pipelines, the Secretary of Transportation
has delegated that authority to PHMSA. See 49 CFR 1.97(c)(2).
The CWA defines ``offshore facility'' to include ``any facility of
any kind located in, on, or under, any of the navigable waters of the
United States.'' Id. section 1321(a)(11). The President has delegated
to the Secretary of the Interior the authority to review and approve
response plans for ``offshore facilities.'' See E.O. 12777, section
2(d)(3). Under a Memorandum of Understanding (MOU), the Secretary of
the Interior has re-delegated his authority over ``transportation-
related'' facilities to the Secretary of Transportation to the extent
those facilities are ``located landward of the coast line.'' The MOU
provides that ``[t]he term `coast line' shall be defined as in the
Submerged Lands Act (43 U.S.C. 1301(c)) to mean `the line of ordinary
low water along that portion of the coast which is in direct contact
with the open sea and the line marking the seaward limit of inland
waters.''' 40 CFR part 112, appendix B. To the extent the MOU re-
delegates authority over pipelines from the Secretary of the Interior
to the Secretary of Transportation, the Secretary of Transportation has
delegated that authority to PHMSA. See Memorandum from the Secretary to
the Administrator, PHMSA, re: Ratification of Research and Special
Programs (``RSPA'') and PHMSA Approvals of Oil Spill Response Plans,
and Delegation of Authority to PHMSA (Aug. 18, 2016).
Thus, PHMSA has been delegated authority to review and approve
response plans for pipelines located landward of the coast line,
regardless of whether those pipelines are considered under the CWA's
definitions to be ``onshore facilities,'' ``offshore facilities,'' or
both.
Beginning with the promulgation of 49 CFR part 194 in 1993, PHMSA
has implemented its authority under the CWA by treating the entirety of
every pipeline located landward of the coast line as an ``onshore
facility'' for purposes of the CWA, even if some segments cross
navigable waters. In other words, for the purposes of part 194, PHMSA
does not consider that there are any ``offshore'' pipeline facilities
landward of the coast line. Thus, the current version of Sec. 194.5
defines ``onshore oil pipeline facilities'' to include only those
facilities ``in, on, or under, any land within the United States other
than submerged land,'' while defining ``high volume area'' in a way
that recognizes that an ``onshore oil pipeline facility'' may ``cross a
major river or other navigable waters.''
In recent litigation, a plaintiff asserted that every segment of a
pipeline landward of the coast line that crosses navigable waters is an
``offshore facility,'' and that PHMSA acted unlawfully in approving
response plans covering such segments pursuant to regulations that only
apply to facilities ``in, on, or under, any land.'' The court
disagreed, holding that ``PHMSA's interpretation of oil pipelines that
cross navigable waters as single onshore facilities is reasonable
within the meaning of the CWA.'' Nat'l Wildlife
[[Page 21145]]
Fed. v. Sec'y of the Dep't of Transp., 374 F. Supp. 3d 634, 647 (E.D.
Mich. 2019).
PHMSA continues to implement its authority under the CWA consistent
with its long-held interpretation that the entirety of every pipeline
located landward of the coast line is an ``onshore facility'' for
purposes of the CWA, even if some segments cross navigable waters. To
provide additional certainty, however, PHMSA proposes amending the
definition of ``onshore oil pipeline facilities'' to make clear that
the part 194 regulations cover all pipelines landward of the coast
line, regardless of whether those pipelines are considered under the
CWA's definitions to be ``onshore facilities,'' ``offshore
facilities,'' or both. This change would maintain the status quo and
have no impact on the substance of the response plans submitted by
operators. Operators could continue to submit response plans covering a
response zone made up of multiple facilities, and the requirements for
those plans would remain unchanged.
Major River
PHMSA is proposing to remove the definition for ``major river.''
This change would not affect the requirements of part 194 as the
meaningful portions of the definition are repeated elsewhere. The term
``major river'' only appears in the definition for ``high volume
area,'' which includes the first part of the ``major river'' definition
regarding waterways with high flow volumes and vessel traffic. The
second part of the major river definition is adequately covered by the
high-volume area definition and appendix B and is unnecessary.
Additionally, the book that is referenced is outdated, out of print,
and not readily available to the public.
Section 194.7 Operating Restrictions and Interim Operating
Authorization
PHMSA is proposing technical and editorial amendments to Sec.
194.7 to account for the removal of Sec. Sec. 194.101 and 194.103.
Section 194.9 Incorporation by Reference
PHMSA is proposing to add a new section to part 194 to list
standards and documents from the American Petroleum Institute (API),
the National Fire Protection Association (NFPA), and the United States
Coast Guard (USCG) that are incorporated by reference (IBR) in this
part. While the API and NFPA documents were already listed in the
existing Sec. 194.105 for the purposes of determining the worst-case
discharge of breakout tanks, part 194 lacked a specific IBR section
identifying which editions of the standards were IBR into part 194.
These are the same editions that are currently incorporated by
reference in part 195.
API Recommended Practice 651, Cathodic Protection of Aboveground
Petroleum Storage Tanks, Third Edition
API Recommended Practice (RP) 651, Third Edition (2007) specifies
procedures and practices for applying cathodic protection, a method of
protecting metallic facilities from corrosion, to aboveground petroleum
storage tanks. This RP contains: (1) Procedures and practices for
effective corrosion control on aboveground storage tank bottoms through
the use of cathodic protection; (2) provisions for the application of
cathodic protection to existing and new aboveground storage tanks; and
(3) information and guidance for cathodic protection specific to
aboveground metallic storage tanks in hydrocarbon service. Section 8 of
the RP sets forth cathodic protection criteria to determine whether
adequate cathodic protection has been achieved on aboveground breakout
tanks. Compliance with the cathodic protection procedures and practices
in API RP 651, API Std 650, and API Std 653, as applicable, allows an
operator to claim a 5% prevention credit to reduce the calculated WCD
of a breakout tank.
API Recommended Practice 2350, Overfill Protection for Storage Tanks in
Petroleum Facilities, Third Edition
API RP 2350 Third Edition (2005) is specifically limited to tanks
associated with marketing, refining, pipeline and similar facilities
containing Class I or Class II petroleum liquids. It addresses minimum
overfill and damage prevention practices for aboveground storage tanks
in petroleum facilities, including refineries, marketing terminals,
bulk plants, and pipeline terminals that receive flammable and
combustible liquids. In Sec. 194.105, operators may claim a 5%
prevention credit to reduce the calculated WCD of a breakout tank if
the tank has an overfill protection system that complies with API RP
2350.
API Standard 620, Design and Construction of Large, Welded, Low-
Pressure Storage Tanks, 11th Edition (including Addendum 1, Addendum 2,
and Addendum 3)
API Standard (Std) 620, 11th Edition (2008), along with Addendum 1
(2009), Addendum 2 (2010), and Addendum 3 (2012) specifies design,
construction, and testing requirements for large, field-assembled,
welded steel tanks used to store petroleum, petroleum products, or
other liquids used in the petrochemical industry. Tanks designed,
constructed, and tested in accordance with API Std 620 are rated to
operate with a vapor pressure up to 15 psig and a metal temperature
below 250 [deg]F. Section 194.105(b)(4) allows an operator to reduce
the calculated WCD from a breakout tank by 10% if the tank is built and
repaired in accordance with API Std 620.
API Standard 650, Welded Steel Tanks for Oil Storage, 11th Edition
(Including Addendum 1, Addendum 2, Addendum 3, and Errata)
API Std 650, Eleventh Edition (2007), along with Addendum 1 (2008),
Addendum 2 (2009), Addendum 3 (2011), and Errata (2011) establishes
minimum requirements for material, design, fabrication, erection, and
testing for vertical, cylindrical, aboveground, closed- and open-top,
welded storage tanks in various sizes and capacities for internal
pressures approximating atmospheric pressure. This standard applies
only to tanks whose entire bottom is uniformly supported and to tanks
in non-refrigerated service that have a maximum design temperature of
93[deg]C (200 [deg]F) or less. In Sec. 194.105, operators may claim a
10% prevention credit to reduce the calculated WCD of a breakout tank
if the tank is built and repaired in accordance with API Std 650 and
API Std 653, if applicable. Additionally, operators may claim a 5%
prevention credit if the breakout tank is cathodically protected and
tested in accordance with API Std 650 and API 651, if applicable.
API Standard 653, Tank Inspection, Repair, Alteration, and
Reconstruction, Third Edition (Including Addendum 1, Addendum 2,
Addendum 3, and Errata)
API Std 653, Third Edition (2001), along with Addendum 1 (2003),
Addendum 2 (2005), Addendum 3 (2008), and Errata (2008), provides
minimum requirements for maintenance inspection, repair, alteration,
relocation, and reconstruction of aboveground steel oil storage tanks
once they have been placed in service, manufactured in accordance with
API Std 650 or its predecessor API 12C. In Sec. 194.105, operators may
claim a 10% prevention credit to reduce the calculated WCD of a
breakout tank if the tank is repaired in accordance with API Std 653
and built and repaired in accordance with API Std 650, as applicable.
[[Page 21146]]
NFPA-30, Flammable and Combustible Liquids Code, 2012 Edition
(Including Errata 30-12-1 and Errata 30-12-2)
NFPA 30, 2012 Edition, provides fundamental safeguards for the
storage, handling, and use of flammable and combustible liquids. It is
a relatively broad document covering general fire safety considerations
for facilities where flammable and combustible liquids are present and
specific requirements for a number of different types of situations and
facilities. In Sec. 194.105(b)(4), NFPA 30 is referenced to determine
whether prevention credits can be applied for breakout tanks for
secondary containment or drainage/treatment. Most breakout tanks are
aboveground storage tanks covered under Chapter 22 of NFPA 30. Section
22.11 covers the spill control specifications for dikes, berms,
secondary containment tanks, impoundment, and drainage. If a breakout
tank is provided secondary containment in accordance with the
applicable provisions of NFPA 30, then the operator may reduce the
calculated WCD of the tank by 50% as a prevention credit.
Guidelines for the U.S. Coast Guard Oil Spill Removal Organization
Classification Program
PHMSA proposes to IBR the United States Department of Homeland
Security, United States Coast Guard (USCG) ``Guidelines for the U.S.
Coast Guard Oil Spill Removal Organization Classification Program,''
June 2019.\8\ This document describes the requirements for OSROs to be
classified by the USCG to respond to and recover oil spills of various
sizes at various locations. The USCG classifies OSROs based on the
location of their response resources and an assessment of their ability
to mobilize those resources. An OSRO's response resources (e.g., booms,
skimmers, vessels, storage, and personnel) and response times must meet
or exceed the response capability caps needed by a facility, tank
vessel, and non-tank vessel plan holder.\9\ Pursuant to 33 CFR parts
154 and 155, OSROs are classified into three tiers based on their
response time capabilities. Tier 1 OSROs have the most stringent
response time requirements and must be able to deploy the specified
quantity of initial resources on-site within 12 hours of notification
(6 hours within a higher-volume port area). These response time
requirements are further discussed in Chapter 4 of the USCG's OSRO
Classification Program Guidelines. The document also addresses
personnel training, equipment maintenance, and other requirements OSROs
must meet to be classified. OSROs are periodically inspected by the
USCG to confirm that they still meet the readiness requirements
described in this document.
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\8\ Available at https://homeport.uscg.mil/Lists/Content/Attachments/55022/2019%20Guidelines%20for%20the%20US%20Coast%20Guard%20OSRO%20Classification%20Program.pdf.
\9\ Section 311(j) of the Federal Water Pollution Control Act
(FWPCA), amended by section 4202 of the Oil Pollution Act of 1990
(OPA 90), requires the preparation and submission of response plans
by the owners or operators of certain oil-handling facilities and
for all vessels defined as ``tank and non-tank vessels'' (hereafter
referred to as plan holders). Plan holders, through their response
plans, must address the complex system for assembling, mobilizing,
and controlling response resources to maintain statutory compliance
as well as being prepared to respond to oil spills within their area
of operation. Plan holders must submit a response plan to the USCG
that identifies and ensures, by contract or other approved means,
the availability of response resources (personnel and equipment)
necessary to remove, to the maximum extent practicable, a WCD,
including a discharge resulting from fire or explosion, and to
mitigate or prevent a substantial threat of such a discharge. To
relieve the burden upon plan holders to provide detailed lists of
response resources, the USCG created the OSRO classification
program, so that plan holders would be required to identify the
OSROs only by name in their response plans, if the OSRO meets a plan
holder's planning requirements.
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A contract with a USCG-classified OSRO is not required to comply
with part 194; however, it is a convenient way of providing and
documenting adequate response resources in an Oil Spill Response Plan
(OSRP). PHMSA proposes to revise Sec. 194.115 to adopt the response
resources requirements from the USCG oil facilities regulations in
appendix C to part 154, Guidelines for Determining and Evaluating
Required Response Resources for Facility Response Plans, and the
existing response time requirements identical to the WCD Tier 1
requirements in the ``Guidelines for the U.S. Coast Guard Oil Spill
Removal Organization Classification Program.'' Therefore, a contract
with an OSRO classified by the USCG as a WCD Tier 1 for facilities
meets the response resources requirements in Sec. Sec. 194.115 and
194.107(b)(1)(vi).
Section 194.101 Operators Required to Submit Plans
PHMSA is proposing to remove Sec. 194.101 and incorporate the most
relevant exceptions found in this section into the applicability
section at Sec. 194.3. Including these conditions into the
applicability statement serves the same purpose.
Section 194.103 Significant and Substantial Harm; Operator's Statement
PHMSA is proposing to remove this section and all references to
``significant and substantial harm'' and ``substantial harm.'' Section
194.103 defines conditions where a pipeline facility can be expected to
cause ``significant and substantial harm to the environment in the
event of a discharge of oil.'' If these conditions are not met, then a
WCD can be assumed to cause ``substantial harm.'' There is no
functional difference between the requirements for facilities that
could cause ``significant and substantial harm'' and facilities that
could cause ``substantial harm.''
Currently, the requirements for preparing a ``significant and
substantial harm'' or ``substantial harm plans'' are nearly the same,
as shown in the table below.
------------------------------------------------------------------------
A ``significant and substantial harm''
plan: A ``substantial harm'' plan:
------------------------------------------------------------------------
(1) includes a statement for why the (1) does not require a
pipeline could cause significant and statement of harm;
substantial harm according to the
conditions at 49 CFR 194.103;.
(2) must be approved by PHMSA; and........ (2) must be reviewed by
PHMSA; and
(3) must be updated and resubmitted to (3) must be updated and
PHMSA within 5 years of each approval. resubmitted to PHMSA within
5 years of submission.
------------------------------------------------------------------------
PHMSA reviews all ``significant and substantial harm'' and
``substantial harm'' plans equally and requires operators to correct
any deficiencies the agency identifies. Operators with ``significant
and substantial harm'' plans in compliance with part 194 receive a
letter from PHMSA stating the agency approves the plan. Operators with
``substantial harm'' plans in compliance with part 194 receive a letter
from PHMSA stating the agency reviewed the plan for compliance. The
differentiation in plan types appears to cause confusion as evidenced
by submission of ``significant and substantial harm'' statements for
pipelines that do not meet the criteria. PHMSA has also received
``substantial harm'' plans that include resubmittal requirements for
``significant and substantial harm'' plans. For this reason, PHMSA is
proposing to remove Sec. 194.103. In
[[Page 21147]]
Sec. 194.119, PHMSA proposes to review all facility response plans for
compliance and issue letters of approval to acceptable plans, which is
consistent with how PHMSA currently manages both types of plans it
receives. Similarly, in Sec. 194.121, PHMSA proposes to require
operators to review and resubmit all response plans within five years
of the date of the last approval. This administrative change will not
impact safety since the majority of plans are updated before the five-
year resubmission timeframe due to other changes affecting a plan.
Section 194.105 Worst Case Discharge
Each operator must determine the WCD of oil possible from its
pipeline facility. PHMSA is proposing to remove the requirement to
include historical discharge volumes in the WCD calculation and allow
the use of spill models. Currently, the regulations define a WCD as the
largest volume of oil discharged when comparing: (1) The maximum
release from a pipeline line section; (2) the capacity of the single
largest breakout tank, or capacity of a battery of tanks within a
single secondary containment, with applicable prevention credits
applied and; (3) the largest historic discharge. An operator must
provide documentation showing that it considered and correctly
calculated the potential discharge volume for each scenario. PHMSA then
compares the operator's historical and calculated discharge volumes
during its review of the operator's entire FRP. If the historical
volume is greater than the calculated volume, PHMSA considers the
calculation incorrect, and the operator must recalculate the volume or
explain the anomaly.
PHMSA has determined that requiring operators to submit historical
discharge volumes in their FRPs is unnecessary and duplicative of other
reporting requirements in the Federal Pipeline Safety Regulations.
Removing the requirement for operators to submit this information
should have no effect on safety. The largest historical discharge is
almost never the WCD and PHMSA has access to historical spill volumes
through accident reports. Only the largest of the listed estimates is
the WCD, and in the past five years, PHMSA has found only one instance
in which a plan noted a historic spill volume that exceeded the
calculated WCD volume, and in that instance, the difference was less
than 50 barrels of hazardous liquid.
PHMSA will still have access to historical spill information.
Section 195.50 requires operators to report accidents to PHMSA via DOT
Form 7000.1, which includes the volume of product spilled. PHMSA can
use the data from accident reports to evaluate the historic WCD volume
of a facility instead of requiring the operator to provide the
information separately. Removing the requirement to report historic
discharge in Sec. 194.105(b)(2) will provide some cost savings to
operators when preparing their plans without impacting the quality of
FRPs or reducing the data available for analysis by PHMSA. The revised
requirements at Sec. 194.105 would require calculations for: (1) The
maximum release from a pipeline section, and (2) capacity of the single
largest breakout tank or battery of tanks within a single secondary
containment with applicable prevention credits applied.
PHMSA is also proposing to clarify that an operator may use oil
spill modeling programs to calculate the WCDs. These programs calculate
the likelihood of a spill, as well as the magnitude and environmental
impacts that might occur. An adequate spill model could also provide
more accurate predictions of potential spill volumes. Several operators
use spill models to calculate WCD for State-required response plans or
to assist them with managing the integrity of their pipeline
facilities. PHMSA is aware of several models that use the same
variables as the current regulatory requirements, such as pipeline
diameter, line section length, detection and shutdown times, and
maximum product flow rates. Certain oil spill modeling programs may
also consider terrain, proximity to navigable waters, mechanical
capabilities of valves, and other variables. These models can also
provide valuable information if a spill were to occur anywhere along
the pipeline facility, not just at the location of the WCD.
Section 194.107 General response plan requirements
Section 194.107(a) describes the general content, such as
procedures and resources, an operator must include in a response plan.
An operator's response plan must prove that the operator can adequately
respond to a WCD. PHMSA is proposing a number of revisions to codify
PHMSA policy, eliminate redundant reporting, and make clarifications
consistent with Federal policy and terminology. Together, these
revisions will result in higher quality FRPs, improved regulatory
clarity, and reduced burden.
Consistent with the revisions to Sec. 194.103 discussed earlier,
PHMSA is proposing to amend Sec. 194.107(a) to remove any discussion
of ``significant and substantial harm.'' PHMSA is also proposing to
remove the reference to the term ``substantial threat.'' Operators must
consider WCDs regardless of whether they are a result of abnormal
operating conditions, so including the term substantial threat is
redundant of the WCD requirement. In addition, PHMSA proposes to move
the phrase ``in adverse weather conditions'' from the definition of WCD
to Sec. 194.107(a). While weather conditions do not change the
calculations for WCD values, adverse weather or climate conditions can
affect how to plan for and respond to spills. Adding a reference to
adverse weather in the plan requirements would clarify that response
planning must consider the operating environment that may be present
during a spill. These changes codify PHMSA's current practices.
Additionally, PHMSA is proposing to revise Sec. 194.107(b) to
codify current PHMSA practices and streamline plan submission
requirements for consistency with other Federal programs. For example,
PHMSA currently lists a requirement to identify procedures for
obtaining permission for in-situ burning or the use of dispersants
under the section for complying with the NCP. However, in-situ burning
and dispersants are not permitted in all areas, especially onshore.
PHMSA therefore proposes to move this requirement to the section on
complying with ACPs and clarifying that operators only need to provide
procedures for those activities if they are allowed in the applicable
ACP.
Section 194.107(c) specifies what each response plan must include.
PHMSA is proposing changes to align the regulations with current PHMSA
practices. PHMSA is proposing to revise Sec. 194.107(c) by adding a
requirement to include procedures for providing applicable Safety Data
Sheets to emergency responders and the Federal On-Scene Coordinator
(FOSC) within six hours of a spill and clarify that the immediate
notification procedures in Sec. 194.107(c)(1)(ii) must include
notifications to the National Response Center (NRC). The requirement to
provide Safety Data Sheets to first responders codifies a self-
executing requirement in section 14 of the Protecting our
Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016
(Pub. L. 114-183) and NRC notification is already required at Sec.
195.52. PHMSA is also proposing to eliminate the requirement to provide
a list of response resources if an operator contracts with an OSRO
classified by the U.S. Coast Guard (USCG) as a WCD
[[Page 21148]]
Tier 1 \10\ organization for the operating environments (``River/
Canal,'' ``Inland,'' or ``Great Lakes,'') that the pipeline facility
could affect. This is consistent with other Federal requirements,
codifies PHMSA's current practices, and eliminates an unnecessary
burden on the operator. OSROs provide lists of response resources to
the expert agency USCG as a part of the classification program,
therefore requiring this information from an operator is redundant.
PHMSA also proposes to clarify that procedures for testing equipment
are only necessary if an operator controls response equipment;
procedures for maintaining equipment are inapplicable to operators that
rely solely on OSROs and that do not own response equipment.
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\10\ WCD Tier 1, or W1 is a USCG classification for OSROs. WCD
tier 1 has the most stringent requirements for deployment and
response times among the WCD tiers. For more information, see the
Guidelines for the U.S. Coast Guard Oil Spill Removal Organization
Classification Program. April 2013. https://homeport.uscg.mil/Lists/Content/Attachments/1286/Guidelines%20for%20the%20USCG%20OSRO%20Classification%20Program.pdf.
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Finally, PHMSA is proposing editorial revisions throughout this
section and changes to make these requirements more consistent with
current response practices. The most notable of these changes include:
(1) Amending the term ``drill program'' to read ``drill and exercise
program''; (2) specifying that operators can satisfy the requirement
for a drill and exercise program by following the current National
Preparedness for Response Exercise Program \11\ (PREP) guidelines; and
(3) changing the term ``response management system'' to ``incident
command system'' in Sec. 194.107(c)(3). These changes ensure drill and
exercise programs are consistent nationally and that PHMSA's
terminology is consistent with the NCP and the National Response
Framework.\12\
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\11\ https://www.regulations.gov/document?D=USCG-2011-1178-0110.
\12\ U.S. Department of Homeland Security, Federal Emergency
Management Agency. 2013. National Response Framework. https://www.fema.gov/media-library-data/20130726-1914-25045-8516/final_national_response_framework_20130501.pdf.
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Section 194.109 Submissions of state response plans
Section 194.109 allows operators to prepare and submit a response
plan prepared to comply with a State law or regulation instead of
creating a separate plan to comply with part 194, so long as the plan
prepared for a State law or regulations meets or exceeds the
requirements of part 194. PHMSA is proposing to allow operators to
submit to PHMSA a plan that was prepared to meet a State requirement if
the operator also submits a DOT-specific appendix addressing any
additional Federal requirements under part 194 that are not addressed
in the State plan. This will reduce the burden on operators to prepare
separate plans for both PHMSA and a State.
Section 194.113 Information summary
The required elements of an ``Information Summary'' are provided in
Sec. 194.113. Currently, the information summary for a core plan must
provide a listing and description of each response zone covered by that
plan. Operators have the option to subdivide their response plans into
``response zones'' in order to have different procedures for specific
geographical areas. However, currently, any change in the configuration
of response zones requires amending the core plan. PHMSA proposes to
instead require that the core plan list the applicable response zone
appendices and move the requirement to list the response zones to those
appendices. This will slightly reduce the burden to preparing and
updating plans because it will allow operators to only modify response
zone appendices without having to also change the core plan for changes
to response zone configuration. PHMSA is also removing all references
to ``significant and substantial harm'' consistent with the removal of
Sec. 194.103.
PHMSA also proposes to revise Sec. 194.113 to clarify that maps,
including current National Pipeline Mapping System (NPMS) \13\
submissions, are an acceptable method of describing the location of the
response zone and pipeline facilities. Clarifying that maps are an
acceptable alternative to a listing of line segment locations codifies
current PHMSA policy. The proposed rule would also allow operators to
satisfy the requirements at Sec. 194.113 by referencing the NPMS,
provided that their NPMS submission is current and includes the PHMSA-
issued FRP identification number. Currently, the NPMS allows, but does
not require, an operator to include the FRP identification number in
their geospatial data. Allowing operators to reference NPMS submissions
eliminates the burden for operators to provide additional maps or a
list of line segments in addition to information they already submit
for the NPMS. Additionally, if an operator identifies the applicable
FRPs on their NPMS submissions, PHMSA can use the NPMS to quickly and
accurately identify that FRP for a FOSC during a spill or other type of
emergency. Finally, PHMSA proposes eliminating the requirement for
operators to provide a basis for determining if a WCD would cause
``significant and substantial harm,'' as PHMSA is proposing to remove
that term from part 194. These changes result in a minor reduction in
burden with no impact on the quality of operators' FRPs.
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\13\ Section 195.61 requires operators to provide geospatial
data regarding hazardous liquid pipeline facilities to PHMSA.
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Section 194.115 Response resources
PHMSA is proposing to harmonize its oil pipeline response planning
requirements in Sec. 194.115 with those of the USCG to ensure that
pipeline operators have the necessary personnel and equipment available
to remove to the maximum extent practicable, a WCD. This proposed
amendment is based on recommendations from the National Transportation
Safety Board's (NTSB) accident report on the Enbridge oil spill near
Marshall, Michigan, in 2010.\14\ The NTSB recommended a DOT audit of
PHMSA's FRP program (NTSB Recommendation P-12-1) and recommended PHMSA
amend part 194 to harmonize onshore oil pipeline response plan
requirements with those of the USCG and the U.S. Environmental
Protection Agency to ensure that operators have adequate resources
available to respond to worst-case discharges (NTSB Recommendation P-
12-9).
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\14\ Enbridge Incorporated Hazardous Liquid Pipeline Rupture and
Release, Marshall, Michigan, July 25, 2010, Pipeline Accident Report
NTSB/PAR-12/01 (Washington, DC: National Transportation Safety
Board, 2012).
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In response to these recommendations, DOT initiated an audit of the
onshore pipeline facility response plan program, including an addendum
from PHMSA. The DOT audit found that PHMSA's current regulations do not
adequately specify the appropriate quantity or type of response
resources needed to respond to a spill.\15\ To address these issues,
the audit recommended PHMSA amend Sec. 194.115(a) to reference the
USCG's ``Guidelines for Determining and Evaluating Required Response
Resources for Facility Response Plans'' \16\ and to define the meaning
of the response tiers in Sec. 194.115(b).
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\15\ Audit Report: An Assessment of the Office of Pipeline
Safety's Onshore Pipeline Facility Response Plan Program, U.S.
Department of Transportation, June 19, 2017. https://www.transportation.gov/sites/dot.gov/files/docs/mission/administrations/office-policy/300246/osrp-audit-report-final-dotp-12-1and2.pdf.
\16\ 33 CFR part 154, appendix C.
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[[Page 21149]]
PHMSA is proposing both of these amendments in this rulemaking. In
Sec. 194.115(a), PHMSA is proposing to require that operators have
adequate response resources as defined in USCG's ``Guidelines for
Determining and Evaluating Required Response Resources for Facility
Response Plans.'' Those guidelines define how to identify adequate
response resources to remove, to the maximum extent practicable, a WCD.
The proposed changes will not affect the cost of operators' compliance
with part 194, as PHMSA uses the USCG's ``Guidelines for Determining
and Evaluating Required Response Resources for Facility Response
Plans'' and the USCG Response Resource Inventory to assess and verify
the adequacy of operator's response resources in FRPs.\17\
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\17\ At the recommendation of NTSB, PHMSA harmonized its
procedures for reviewing oil spill response plans with those of the
USCG and the EPA. More information can be found at https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=P-12-009.
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In Sec. 194.115(b), PHMSA is proposing to include additional
guidance on the meaning of the response tiers. The USCG's ``Guidelines
for Determining and Evaluating Required Response Resources for Facility
Response Plans,'' which PHMSA is proposing to reference in paragraph
(a), require an operator to ensure the availability of certain
resources within certain response times for each of three tiers. Tier 1
resources are local resources that are available for the initial
response. Tier 2 resources are regional resources available within a
longer time period and Tier 3 resources are national level resources
available within an even longer period. PHMSA is proposing, consistent
with its current practice, to clarify that the response times that
operators must use differ than the times referenced in the Guidelines.
Specifically, PHMSA clarifies that a more rapid response to a WCD is
required in ``high-volume areas'' as defined in Sec. 194.5, rather
than in ``higher volume port areas'' defined by the USCG in 33 CFR
154.1020. PHMSA's definition includes substantially more inland
waterways than the USCG definition, which is limited to 5 ports and 2
rivers. For example, while the Guidelines require Tier 1 resources
capable of responding to a WCD arrive within 12 hours at a Great Lakes
location, PHMSA requires that Tier 1 resources arrive within 6 hours at
any high-volume area, which includes the Great Lakes.
As discussed above in the discussion of Sec. 194.107, an operator
need not provide a list of response resources if that provides evidence
of a signed, current contract with an OSRO that has received a WCD1
classification from the USCG. The USCG has determined that an OSRO that
has received this classification is capable of deploying the maximum
resources that can reasonably respond to any size spill. In this
situation, PHMSA determines compliance with Sec. 194.115 by checking
whether sufficient WCD1-classified OSRO facilities are located within 6
hours of all high-volume areas within a response zone, or 12 hours of
all other areas. An operator that satisfies this requirement has shown
that it has ensured the availability of the highest possible amount of
resources within the shortest, Tier 1 timeframes, and thus generally
will greatly exceed the requirements of Sec. 194.115.
Section 194.119 Submission and approval procedures
PHMSA is proposing minor clarifications to Sec. 194.119 to require
operators submit FRPs electronically in a PDF or HTML format. The
current regulations require operators submit two copies of each FRP;
this is duplicative and has led some operators to believe that PHMSA
requires them to submit both electronic and paper copies of each FRP.
PHMSA prefers that operators submit FRPs electronically. Clarifying
that operators only need to submit an electronic copy of each FRP
eliminates unnecessary costs associated with printing, shipping,
scanning, and storing those documents.
PHMSA is also proposing to require operators respond to PHMSA's
notification of any alleged deficiency in response plans within 30
days, consistent with the timeframe given for operators to submit a
petition for reconsideration of PHMSA's determination of the adequacy
of their plan. Additionally, the proposed rule requires PHMSA approval
for all plans and removes the reference to the terms ``substantial
harm'' and ``significant and substantial harm plans'' in this section
since PHMSA proposes to remove those terms from all of part 194.
Finally, PHMSA is proposing to revise Sec. 194.119 to state that PHMSA
may send a copy of a response plan to the FOSC when requested instead
of requiring an operator to provide a plan to the FOSC. PHMSA can
provide FRPs to FOSCs when necessary and relieve operators of this
burden since PHMSA maintains electronic copies of the FRPs.
Section 194.121 Response plan review and update procedures
PHMSA is proposing revisions to the response plan and review
procedures in Sec. 194.121 to require operators to review and resubmit
all response plans at least every five years from the date of the last
approval. Consistent with its proposal to remove references and
requirements based on the terms ``substantial harm'' and ``significant
and substantial harm,'' PHMSA is removing instances of those terms in
this section as well.
Additionally, PHMSA proposes to clarify that an operator must
submit an FRP before a new oil pipeline facility or an extension of an
existing pipeline facility becomes operational. As currently written,
one could interpret the regulations to require that operators submit an
FRP for a pipeline facility that is under construction. OPA 90 applies
to a transportation-related pipeline facility that could discharge oil;
a plan is not required during construction because during construction
there is no oil in the pipeline that can be discharged.
Consistent with allowing operators to reference the NPMS to satisfy
the requirement in Sec. 194.113 to provide the location of response
zones and pipeline facilities, PHMSA proposes to revise the
instructions for updating line section information to include newly
constructed or extended pipelines that are not yet available in NPMS.
Operators with new segments may continue to reference the NPMS for the
existing segments, but must include a list and description of any
segments that are not currently available in the NPMS. This change
ensures operators referencing the NPMS do not have to create and submit
new maps of existing pipelines whenever pipelines are extended or
added.
Appendix A to Part 194
Appendix A to part 194 provides a recommended format for preparing
and submitting response plans required by part 194. PHMSA is proposing
to amend this appendix to reflect the changes to part 194 set forth in
this proposed rule and to add further guidance. For example, in
``Section 5. List of Contacts,'' PHMSA is proposing to clarify that an
operator must include 10-digit telephone numbers in their response
plans as opposed to just ``a telephone number.'' At ``Section 9.
Response Zone Appendices,'' PHMSA is proposing additional guidelines
for operators to include procedures to obtain permission to use
applicable alternative response strategies, such as in-situ burning or
dispersants, consistent with applicable ACPs, which was omitted in the
initial publication of part 194. Also in Section 9, PHMSA proposes to
include procedures for operators to provide applicable Safety
[[Page 21150]]
Data Sheets to emergency responders and the FOSC within six hours of a
spill, consistent with the revisions to Sec. 194.107(c) and section 14
of the PIPES Act of 2016 (Pub. L. 114-183).
Appendix B to Part 194
PHMSA is proposing to add the Great Lakes to the list of ``Other
Navigable Waters'' in appendix B to part 194. This change will affect
one operator whose pipeline currently crosses the Great Lakes, but
PHMSA does not anticipate this change will affect that operator's plan.
C. Part 195 Transportation of Hazardous Liquids by Pipeline
Part 195 contains the Federal safety regulations for pipeline
facilities used to transport hazardous liquids and carbon dioxide.
Those regulations include reporting requirements and standards for the
safe design, construction, testing, operation, and maintenance of
hazardous liquid pipeline facilities. PHMSA is proposing amendments to
part 195 to adjust the monetary damage criterion for reporting pipeline
accidents for inflation, clarifying that operators may monitor cathodic
protection rectifiers remotely, and correcting the organization of the
IM guidance in appendix C of part 195. PHMSA also proposes editorial
amendments to Sec. 195.3 to meet requirements from the Office of the
Federal Register and update the address for API.
Section 195.50 Reporting accidents and Sec. 195.52 Immediate notice of
certain accidents.
PHMSA is proposing to revise the definition of an ``accident'' at
Sec. Sec. 195.50 and 195.52 to adjust the monetary damage threshold
criterion for inflation. This proposed amendment changes the criteria
for submitting accident reports and giving immediate telephonic
notification to the NRC. PHMSA is proposing adjusting the value of the
property damage threshold from $50,000 to $118,000. In part 195,
property damage includes the cost of cleanup and recovery, value of
lost product, and damage to the property of the operator or others, or
both. Operators would still be required to report any accident that
caused a death or a personal injury requiring hospitalization; that
resulted in either a fire or explosion not intentionally set by the
operator; that resulted in pollution of any stream, river, lake,
reservoir, or other similar body of water; or that is otherwise
significant in the judgment of the operator.
On May 3, 1984, PHMSA's predecessor agency, the Research and
Special Programs Administration, promulgated a definition for an
``incident'' at Sec. 191.3 to establish criteria that would trigger
requirements to report specific events on gas pipeline facilities to
PHMSA.\18\ The 1984 definition of an incident included a property
damage threshold of $50,000. In 1994, PHMSA adopted the same value for
hazardous liquid pipeline accidents.\19\ Today, the property damage
criteria that triggers incident and accident reporting requirements are
the same as they were in 1984 and 1994. PHMSA is basing the proposed
inflation adjustment in this rulemaking on the 1984 date that
established the $50,000 value for gas pipelines so that the property
damage criteria remain consistent between gas and hazardous liquid
pipelines. PHMSA intends to propose a similar change for reporting
incidents on gas pipeline facilities in a separate regulatory action.
---------------------------------------------------------------------------
\18\ Transportation of Natural and Other Gas by Pipeline: Annual
Reports and Incident Reports, 49 FR 18960, (May 3, 1984).
\19\ Regulatory Review: Hazardous Liquid and Carbon Dioxide
Pipeline Safety Standards, 59 FR 33388, (June 28, 1994).
---------------------------------------------------------------------------
One of the issues raised most frequently in comments submitted in
response to the notification of regulatory reform (82 FR 45750; Oct. 2,
2017) was the $50,000 property damage threshold for reporting gas
pipeline incidents and hazardous liquid pipeline accidents. Comments
submitted in response to the notice of regulatory reform from API,
AOPL, and GPA Midstream Association \20\ supported an increase in the
property damage threshold for reporting gas pipeline incidents and
hazardous liquid pipeline accidents. Based on the average annual
Consumer Price Index (CPI) from the Bureau of Labor Statistics, $50,000
in 1984 is approximately $118,000 in 2017 dollars.\21\ At $50,000, the
current criterion requires operators report relatively minor accidents
that would not have been reported in 1984 due to inflation in property,
equipment, and repair costs.
---------------------------------------------------------------------------
\20\ Formerly the Gas Processors Association.
\21\ Calculated by multiplying the original property damage
criteria ($50,000) by the average CPI in 2017 divided by the average
CPI in 1984. ($50,000 * (245.139/103.933) = $117,931, or
approximately $118,000). This analysis is based on the CPI for all
urban consumers (CPIAUCSL) from the Bureau of Labor Statistics,
accessed via the Federal Reserve Bank of St. Louis. https://fred.stlouisfed.org/series/CPIAUCSL#0.
---------------------------------------------------------------------------
The proposed revision to the property damage threshold brings the
accident reporting criteria in-line with the 1984 threshold in
inflation-adjusted terms. Based on a review of previous accident
reports, adjusting the figure for inflation would decrease the total
number of events reportable as accidents by approximately 1%, and
reduce those reportable due to only the property-damage criterion by
approximately a third. This rulemaking assumes the threshold set 35
years ago is still appropriate for today once it is adjusted for
inflation; however, since the original rulemaking 35 years ago an
improved safety record has decreased the number of significant events,
and the safety information needs may have changed. PHMSA seeks comment
on whether the level of safety information needed from property damage
only accident reporting should be updated to align with inflation, and
the extent to which retaining a de facto lower threshold after
inflation would provide beneficial information on contributing risk
factors and accident trends.
PHMSA intends to periodically update the monetary damage threshold
on a regular basis in the future, potentially biennially. Future
updates would be based on the same formula used for this adjustment:
[GRAPHIC] [TIFF OMITTED] TP16AP20.001
Where Tn is the revised damage threshold, Tp is the previous damage
threshold, CPIn is the average CPI-U for the past calendar year, and
CPIP is the average CPI-U used for the previous damage threshold. PHMSA
could subsequently update the monetary damage threshold in accordance
with this formula either through notice and comment rulemaking, a
direct final rule, notice on the PHMSA public website, or other means.
This method is similar to the method that the Federal Railroad
Administration uses to update the criteria for reporting accidents/
incidents at 49 CFR 225.19 and appendix B to part 225. PHMSA seeks
comments on the appropriate method and frequency for future updates to
the monetary damage threshold. PHMSA intends to base any finalized
version of this provision on the price level at the time of publication
of the final rule.
The revised accident reporting criteria will result in fewer
accident reports being submitted to PHMSA and fewer telephonic
notifications to the NRC, resulting in cost savings to industry and
reduced burden on government. While accident reporting does not
directly affect safety, PHMSA acknowledges that the collection and
analysis of accident data has indirect safety benefits to both
operators and regulators. However, reporting accidents with relatively
[[Page 21151]]
minor damage provides comparatively less information value than reports
with greater damage.
Section 195.573 What must I do to monitor external corrosion control?
PHMSA is proposing to revise Sec. 195.573(c) to clarify that
operators may monitor rectifier stations remotely. Rectifiers are
devices that direct an electrical current on a pipeline to prevent
external corrosion. Section 195.573(c) currently requires operators to
regularly inspect rectifiers on hazardous liquid pipelines to ensure
that they are working correctly. Advances in technology make it
possible for operators to monitor these electrical systems remotely,
but it is unclear in the regulations if this is permissible. In this
rulemaking, PHMSA is proposing to make it clear that operators may
inspect rectifier stations directly onsite or by way of remote
monitoring technologies. This rulemaking also proposes to specify that
such an inspection will consist of amperage and voltage measures in
order to clarify the requirements of this section for operators and
PHMSA and State inspectors.
Remote monitoring is a safe and efficient alternative to in-person
checks in the field; however, monitoring equipment and the rectifier
itself must be properly maintained to function safely and as intended.
PHMSA's experience has shown that rectifiers, often located in remote
areas, can be subject to damage from a variety of sources, including
natural forces and vandalism. If an operator chooses to monitor a
rectifier remotely, PHMSA proposes to require operators to physically
inspect rectifier stations whenever they conduct a cathodic protection
test under Sec. 195.573. In accordance with that section, this will
typically occur once every calendar year, not to exceed 15 months.
Appendix C Guidance for Implementation of an Integrity Management
Program
PHMSA is proposing to make minor corrections to the guidance in
part 195 for implementing Integrity Management (IM) programs on
hazardous liquid pipelines. API and AOPL submitted comments in response
to the notification of regulatory reform (82 FR 45750; Oct. 2, 2017)
concerning appendix C of part 195, noting that portions of the guidance
for hazardous liquid IM programs, with regard to the identification of
High Consequence Areas (HCA), are either impracticable or misplaced.
They commented that the guidance for identifying agricultural drainage
tiles as possible could-affect HCAs is not feasible. While PHMSA
provides geographical information system (GIS) maps of other HCAs to
hazardous liquid pipeline operators through the National Pipeline
Mapping System (49 U.S.C. 60132(d)), API and AOPL commented that
drainage tiles are difficult to identify as they are neither mapped by
PHMSA nor available from any other national-level data source. They
also identified other items under the guidance for identifying HCAs
that are more accurately categorized as guidance for identifying
integrity risk factors elsewhere in the appendix.
In consideration of those comments, PHMSA has reviewed the guidance
for implementing a liquid IM program outlined in appendix C of part 195
and is proposing revisions to address these issues. PHMSA proposes
revised guidance for considering spills in fields and is moving details
for considering the physical support of pipelines, maximum operating
pressure (MOP) exceedances, and natural force damage caused by earth
movement or seismicity from the guidance for identifying segments that
could-affect HCAs to the guidance on identifying threats.
PHMSA also proposes to leave the requirement to consider operating
conditions (other than MOP exceedances) and flood zones where it
currently is in the regulations and in the HCA identification guidance.
API commented that it was not clear why overpressure conditions and
natural force damage were relevant to identifying HCAs. PHMSA agrees
that past exceedances of MOP are more relevant to threat
identification; however, other pipeline operating characteristics such
as pressure, flow, and mode of operation can influence the predicted
spill volume, and therefore whether it could affect an HCA. Likewise,
potential flood conditions may influence whether a release could affect
an HCA.
These are primarily editorial revisions to non-binding guidance,
therefore there are neither direct costs nor benefits. However, clearer
and more practicable guidance may improve operators' implementation of
the IM requirements.
V. Availability of Standards Incorporated by Reference
PHMSA currently incorporates by reference into 49 CFR parts 192,
193, and 195 all or parts of more than 80 standards and specifications
developed and published by standard development organizations (SDO). In
general, SDOs update and revise their published standards every 2 to 5
years to reflect modern technology and best technical practices. ASTM
International (ASTM) often updates some of its more widely used
standards every year. Sometimes multiple editions are published in a
given year.
The National Technology Transfer and Advancement Act of 1995
(NTTAA), Public Law 104-113, directs Federal agencies to use standards
developed by voluntary consensus standards bodies in lieu of
government-written standards whenever possible. Voluntary consensus
standards bodies develop, establish, or coordinate technical standards
using agreed-upon procedures. In addition, OMB issued Circular A-119 to
implement section 12(d) of the NTTAA relative to the utilization of
consensus technical standards by Federal agencies. This circular
provides guidance for agencies participating in voluntary consensus
standards bodies and describes procedures for satisfying the reporting
requirements in the NTTAA.
Accordingly, PHMSA has the responsibility for determining, via
petitions or otherwise, which currently referenced standards should be
updated, revised, or removed, and which standards should be added to
the Federal Pipeline Safety Regulations. Revisions to materials
incorporated by reference in the Federal Pipeline Safety Regulations
are handled via the rulemaking process, which allows for the public and
regulated entities to provide input. During the rulemaking process,
PHMSA must also obtain approval from the Office of the Federal Register
to incorporate by reference any new materials.
Pursuant to 49 U.S.C. 60102(p), PHMSA may not issue a regulation
that incorporates by reference any documents or portions thereof unless
the documents or portions thereof are made available to the public,
free of charge.
Further, the Office of the Federal Register issued a rulemaking on
November 7, 2014, that revised 1 CFR 51.5 to require that agencies
detail in the preamble of an NPRM the ways the materials it proposes to
incorporate by reference are reasonably available to interested
parties, or how the agency worked to make those materials reasonably
available to interested parties (79 FR 66278).
To meet its statutory obligation for this rulemaking, PHMSA
negotiated agreements with various SDOs to provide free online access
to standards that are incorporated by reference or proposed to be
incorporated by reference. The standards in the proposed rule are
available for view at the following locations during the
[[Page 21152]]
comment period; API standards are available at http://publications.api.org/, and NFPA standards are available at https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access,
and the ``Guidelines for the U.S. Coast Guard Oil Spill Removal
Organization Classification Program'' is available at https://homeport.uscg.mil/Lists/Content/Attachments/55022/2019%20Guidelines%20for%20the%20US%20Coast%20Guard%20OSRO%20Classification%20Program.pdf.
In addition, PHMSA will provide individual members of the public
temporary access to any standard that is incorporated by reference.
Requests for access can be sent to the following email address:
[email protected].
VI. Regulatory Analyses and Notices
A. Legal Authority for This Rulemaking
This proposed rule is published under the authority of the Federal
pipeline safety statutes (49 U.S.C. 60101 et seq.); Section 311 of the
Clean Water Act; 33 U.S.C. 1321, as amended by the Oil Pollution Act
(CWA); and E.O. 12777. E.O. 12777 delegated authority to the Secretary
of Transportation, pursuant to 311(j)(5) of the CWA, to promulgate
regulations requiring the owners and operators of transportation-
related onshore facilities to prepare and submit FRPs. E.O 12777 also
ordered the Secretary of Transportation to review and approve the FRPs,
in accordance with the CWA and promulgated regulations. The Secretary
has delegated this authority under E.O. 12777 to the Administrator of
PHMSA (49 CFR 1.97).
Section 60102(a) authorizes the Secretary of Transportation to
issue regulations governing the design, installation, inspection,
emergency plans and procedures, testing, construction, extension,
operation, replacement, and maintenance of pipeline facilities.
Further, section 60102(l) of the Federal pipeline safety statutes
states that the Secretary shall, to the extent appropriate and
practicable, update incorporated industry standards that have been
adopted as a part of the pipeline safety regulations. The Secretary has
delegated the authority in section 60102 to the Administrator of PHMSA
(49 CFR 1.97).
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
E.O. 12866, ``Regulatory Planning and Review'' (58 FR 51735; Oct.
4, 1993), and DOT's regulatory policies and procedures require that
PHMSA submit for review ``significant regulatory actions'' to the
Office of Management and Budget (OMB). This NPRM is not a significant
regulatory action under section 3(f) of E.O. 12866 and was therefore
not reviewed by OMB. This NPRM also is not significant under the
Department of Transportation's Policies and Procedures for Rulemaking
(49 CFR part 5).
E.O. 12866 requires agencies to design regulations ``in the most
cost-effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' PHMSA
anticipates that, if promulgated, this NPRM, would have economic
benefits to the public and the regulated community by reducing
unnecessary cost burdens without increasing risks to public safety or
the environment. PHMSA estimates the proposed rule will result in
annualized cost savings of approximately $273,242 per year, based on a
7 percent discount rate. In support of this NPRM, PHMSA prepared an
initial regulatory impact analysis (RIA) with estimated costs and
benefits, which is available in the public docket.
C. Executive Order 13771--``Reducing Regulation and Controlling
Regulatory Costs''
This proposed rule is expected to be an E.O. 13771 deregulatory
action. Details on the estimated cost savings of this proposed rule can
be found in the rule's Preliminary RIA, which is available in the
docket.
D. Executive Order 13132--``Federalism''
E.O. 13132 (64 FR 43255; Aug. 10, 1999) imposes certain
requirements on Federal agencies formulating or implementing policies
or regulations that preempt State law or that have federalism
implications. This NPRM does not impose a substantial, direct effect on
the States, the relationship between the National Government and the
States, or the distribution of power and responsibilities among the
various levels of government. This NPRM also does not impose
substantial direct compliance costs on State and local governments.
The proposed rule could have preemptive effect because the pipeline
safety laws, specifically 49 U.S.C. 60104(c), prohibit State safety
regulation of interstate pipelines. Under the pipeline safety law,
States have the ability to augment pipeline safety requirements for
intrastate pipelines but may not approve safety requirements less
stringent than those required by Federal law. A State may also regulate
an intrastate pipeline facility not otherwise covered by PHMSA
regulations. In this instance, the preemptive effect of the proposed
rule is limited to the minimum level necessary to achieve the
objectives of the pipeline safety laws under which the proposed rule is
promulgated. Therefore, the consultation and funding requirements of
E.O. 13132 do not apply.
E. Executive Order 13175--``Consultation and Coordination With Indian
Tribal Governments''
E.O. 13175, (65 FR 67249, Nov. 6, 2000), requires agencies to
consider and consult with Tribal governments when formulating policies.
PHMSA does not anticipate that this NPRM will significantly or uniquely
affect Tribal governments or impose substantial direct compliance
costs, so the funding and consultation requirements of E.O. 13175 do
not apply. PHMSA invites Tribal communities and governments to comment
on this NPRM.
F. Executive Order 13211--``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use''
E.O. 13211 (66 FR 28355, May 22, 2001) requires agencies to submit
``significant energy actions'' to OMB for review. This NPRM is not a
``significant energy action'' under E.O. 13211 because it is unlikely
to have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, no additional analysis is necessary under
E.O. 13211.
G. Executive Order 13272--``Regulatory Flexibility Act''
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as
amended, requires Federal agencies to consider the impact of their
regulatory proposals on small entities' concerns into account when
developing, writing, publicizing, promulgating, and enforcing
regulations. PHMSA determined that, if finalized, the regulations in
this NPRM would not have a significant economic impact on a substantial
number of small entities. An analysis of the potential economic impacts
of the proposed rule on small entities is included in the Initial
Regulatory Flexibility Analysis, which is available for public review
and comment in the docket for this rulemaking.
H. Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
requires Federal agencies to minimize paperwork burden imposed on the
American public by ensuring maximum utility and quality of information
collected by the Federal
[[Page 21153]]
government. PHMSA estimates that the proposals in this rulemaking will
impact the information collections described below.
Based on the proposals in this rule, PHMSA will submit an
information collection revision request to OMB for approval based on
the requirements in this proposed rule. The information collection is
contained in the pipeline safety regulations, 49 CFR parts 190 through
199. The following information is provided for each information
collection: (1) Title of the information collection; (2) OMB control
number; (3) Current expiration date; (4) Type of request; (5) Abstract
of the information collection activity; (6) Description of affected
public; (7) Estimate of total annual reporting and recordkeeping
burden; and (8) Frequency of collection. The information collection
burden for the following information collections are estimated to be
revised as follows:
1. Title: Transportation of Hazardous Liquids by Pipeline: Record
keeping and Accident Reporting.
OMB Control Number: 2137-0047.
Current Expiration Date: 01/31/2023.
Abstract: This information collection covers general recordkeeping
and the collection of information from hazardous liquid pipeline
operators for accident reports. PHMSA estimates that due to the revised
monetary damage threshold for reporting accidents operators will submit
40 fewer hazardous liquid accident reports per year. Therefore, PHMSA
expects to eliminate 40 responses and 40 hours to this information
collection per year as a result of the provisions in the proposed rule.
Affected Public: All hazardous liquid pipeline operators.
Annual Reporting and Recordkeeping Burden:
Total Annual Responses: 1,192 (1,232-40).
Total Annual Burden Hours: 52,029 (52,429-400).
Frequency of Collection: Regular.
2. Title: Response Plans for Onshore Oil Pipelines.
OMB Control Number: 2137-0589.
Current Expiration Date: 06/30/2022.
Abstract: This information collection covers operators' submission
of facility response plans for onshore hazardous liquid pipeline
facilities. While the proposed rule would not reduce the number of
required plan submissions, it would streamline some of the plan
requirements, thereby reducing the burden hours per response. The
proposed rule would reduce burden hours associated with justifying harm
categories or preparing duplicate federal facility response plans in
addition to state mandated response plans. Eliminating the expectation
to submit paper copies of facility response plans will reduce reporting
costs but not paperwork burden hours.
Affected Public: Onshore Hazardous Liquid Pipeline Operators.
Annual Reporting and Recordkeeping Burden:
Total Annual Responses: 540.
Total Annual Burden Hours: 70,416 (73,980-3,564).
Frequency of Collection: On occasion.
I. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.)
requires Federal agencies to prepare and consider estimates of the
budgetary impact of regulations containing Federal mandates upon State,
local, and Tribal governments before adopting such regulations. This
NPRM imposes no unfunded mandates. If promulgated, this rule would not
result in costs of $100 million, adjusted for inflation, or more in any
one year to either State, local, or Tribal governments, in the
aggregate, or to the private sector.
J. National Environmental Policy Act
The National Environmental Policy Act (42 U.S.C. 4321 et. seq.)
requires Federal agencies to analyze the impacts to the environment.
PHMSA analyzed this NPRM in accordance with Section 102(2)(c) of the
Council on Environmental Quality regulations (40 CFR parts 1500 through
1508), and DOT Order 5610.1C. PHMSA has prepared a draft Environmental
Assessment (EA) and has preliminarily determined this action will not
significantly affect the quality of the human environment. A copy of
the EA for this action is available in the docket. PHMSA invites
comment on the environmental impacts of this proposed rulemaking.
K. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
the spring and fall of each year. The RIN contained in the heading of
this document is a cross-reference for this action to the Unified
Agenda.
List of Subjects
49 CFR Part 190
Administrative practices and procedures, Penalties.
49 CFR Part 194
Environmental protection, Hazardous materials transportation,
Incorporation by reference, Oil pollution, Petroleum, Pipeline safety,
Pipelines, Reporting and recordkeeping requirements, Transportation,
Water pollution control.
49 CFR Part 195
Hazardous materials transportation, Incorporation by reference,
Integrity management, Pipeline safety, Pipelines.
For the reasons provided in the preamble, PHMSA proposes to amend
49 CFR parts 190, 194, and 195 as follows:
PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES
0
1. The authority citation for 49 CFR part 190 is revised to read as
follows:
Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.; and 49
CFR 1.97
0
2. In Sec. 190.203, revise paragraph (e) and add paragraph (g) to read
as follows:
Sec. 190.203 Inspections and investigations.
* * * * *
(e) If a representative of the U.S. Department of Transportation
inspects a pipeline facility or investigates an accident or incident
involving a pipeline facility, the operator must make available to the
representative, pursuant to paragraph (g) of this section, all records
and information that pertain to the event in any way, including but not
limited to integrity management plans and test results. The operator
must provide all reasonable assistance in the inspection or
investigation. Any person who obstructs an inspection or investigation
by taking actions that were known or reasonably should have been known
to prevent, hinder, or impede an investigation, without good cause will
be subject to administrative civil penalties under this subpart.
* * * * *
(g) When an operator submits records in response to a PHMSA
inspection or investigation under this section, the operator must
provide the records via hard copy or use an electronic or digital
method such as email, data-storage device, or other means that comply
with this section.
(1) Any electronic system must permit PHMSA to download and print a
copy of each record free of redactions, watermarks, or other
alterations, from any U.S.-based internet access point. Any electronic
system for delivering records to PHMSA must not include activation
codes to begin an individual session, internet connectivity
requirements to view downloaded documents, document tracking features,
login time-out intervals shorter than one hour, or pre-access
conditions.
[[Page 21154]]
(2) Where an operator submits electronic records to PHMSA, the
documents must be submitted in their original format unless PHMSA
allows an alternative format. If the original format allows an operator
to magnify a document while maintaining legibility; search a record for
text; or search for specific records by name, date, or file type, then
the operator may not alter the format of the record prior to submission
in a way that limits the ability of PHMSA to use the same capabilities.
(3) If an operator uses an electronic portal or other system to
provide records to PHMSA, the operator must provide the PHMSA personnel
conducting the inspection or investigation with a point of contact who
is responsible for addressing reported problems with accessing the
system or obtaining records using the system.
(4) If PHMSA determines the form in which the records are provided
would impede or otherwise prevent the efficient review of records in an
inspection or investigation, or if the system is otherwise in conflict
with PHMSA regulations, PHMSA may order an operator to deliver records
in an alternative way. If PHMSA finds that an operator or a system
alters records to remove functionality in a way that impedes the
agency's review, PHMSA may require the operator to resubmit records in
their original form.
0
3. In Sec. 190.343, revise paragraphs (a) and (b) to read as follows:
Sec. 190.343 Information made available to the public and request
for protection of confidential commercial information.
* * * * *
(a) Asking for protection of confidential commercial information.
You may ask PHMSA to give confidential treatment to information you
give to the agency by taking the following steps:
(1) Mark ``CONFIDENTIAL'' on each page of the original document
containing information that you would like to keep confidential; and
(2) Explain in detail why the information you are submitting is
confidential commercial information. General claims of confidentiality
are not sufficient.
(3)(i) Information submitted during a rulemaking proceeding or
application for special permit or renewal. When submitting information
for a rulemaking proceeding or application for special permit or
renewal, the submitter must send to PHMSA, along with the original
document, a second copy of the original document with the confidential
commercial information redacted.
(ii) Information provided for any other reason. When information is
submitted for any reason other than that described in paragraph
(a)(3)(i) of this section, the submitter may send to PHMSA, along with
the original document, a second copy of the original document with the
confidential commercial information redacted.
(b) PHMSA decision. If PHMSA decides to disclose the information,
PHMSA will review your request to protect confidential commercial
information under the criteria set forth in the Freedom of Information
Act (FOIA), 5 U.S.C. 552, including following the consultation
procedures set out in the Departmental FOIA regulations. 49 CFR 7.29.
If PHMSA decides to disclose the information over your objections, we
will notify you in writing at least five business days before the
intended disclosure date.
PART 194--RESPONSE PLANS FOR ONSHORE OIL PIPELINES
0
4. The authority citation for 49 CFR part 194 continues to read as
follows:
Authority: 33 U.S.C. 1231, 1321(j)(1)(C), (j)(5) and (j)(6);
sec. 2, E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; and 49
CFR 1.53.
0
5. Revise Sec. 194.3 to read as follows:
Sec. 194.3 Applicability.
(a) Except for the pipelines listed in paragraph (b) of this
section, this part applies to an onshore oil pipeline that, because of
its location, the operator determines that oil discharged from any
point in the pipeline facility can be expected to adversely affect,
within 12 hours after the initiation of the discharge, any navigable
waters of the United States or adjoining shorelines, public drinking
water intakes, or environmentally sensitive areas.
(b) This part does not apply to an onsore oil pipeline whose line
section is 6\5/8\ inches (168 millimeters) or less in outside nominal
diameter and is 10 miles (16 kilometers) or less in length, where the
operator determines that it is unlikely that the worst-case discharge
from any point on the line section would adversely affect, within 4
hours after the initiation of the discharge, any navigable waters,
public drinking water intake, or environmentally sensitive areas.
0
6. Amend Sec. 194.5 as follows:
0
a. Add the definition for ``Area Contingency Plan (ACP)'' in
alphabetical order;
0
b. Remove the definition of ``Barrel'' and add the definition for
``Barrel (bbl)'' in its place;
0
c. Revise the definition of ``Contract or other approved means;''
0
d. Add the definition for ``Federal On-scene Coordinator (FOSC)'' in
alphabetical order;
0
e. Remove the definitions of ``Major river;''
0
f. Add the definition for ``National Contingency Plan (NCP)'' in
alphabetical order;
0
g. Remove the definition of ``On-Scene Coordinator (OSC);''
0
h. Revise the definition of ``Onshore oil pipeline facilities;''
0
i. Remove the definitions of ``Specified minimum yield strength'' and
``Stress level;''
0
j. Add the definition for ``Tertiary Containment'' in alphabetical
order; and
0
k. Remove the definition for ``Worst case discharge'' and add the
definition for ``Worst-case discharge'' in its place.
The additions and revisions read as follows:
Sec. 194.5 Definitions.
* * * * *
Area Contingency Plan (ACP) means an Area Contingency Plan prepared
in accordance with 33 U.S.C. 1321 (j)(4) and 40 CFR 300.210(c). This is
a reference document prepared for the use of all agencies engaged in
responding to environmental emergencies within a defined geographic
area.
Barrel (bbl) means a unit of volume equivalent to 42 United States
gallons (159 liters) at 60 [deg]Fahrenheit (15.6[deg] Celsius).
* * * * *
Contract or other PHMSA-approved means is:
(1) A signed, active contract with an oil spill removal
organization (OSRO) identifying and ensuring the availability of the
necessary personnel or equipment within the stipulated response time in
Sec. 194.115;
(2) A written certification by the owner or operator that the
necessary personnel or equipment can and will be made available by the
owner or operator within the stipulated response times with supporting
documentation to include a summary of any OSRO contracts, if
applicable, with contract name, identifier and effective dates; or
(3) Documentation of active membership in an OSRO, cooperative, or
mutual aid agreement that ensures the owner or operator's access to the
necessary response personnel or equipment within the stipulated times.
* * * * *
Federal On-Scene Coordinator (FOSC) means the Federal official
designated by the Administrator of the Environmental Protection Agency
(EPA) or by the
[[Page 21155]]
Commandant of the United States Coast Guard (USCG) to coordinate and
direct Federal response under subpart D of 40 CFR part 300.
* * * * *
National Contingency Plan (NCP) means the National Oil and
Hazardous Substances Pollution Contingency Plan codified in 40 CFR part
300. The NCP provides the national-level organization structures and
procedures for preparing for and responding to discharges of oil and
other pollutants.
* * * * *
Onshore oil pipeline facilities mean new and existing pipe, rights-
of-way and any equipment, facility, or building used in the
transportation of oil located landward of the ``coast line,'' as
defined under the Submerged Lands Act of 1953 (43 U.S.C. 1301(c)).
* * * * *
Tertiary Containment means a dike, berm or another physical barrier
that is outside of a ``secondary containment'' barrier.
Worst-case discharge means the largest foreseeable discharge of
oil, including discharge from fire or explosion. This volume will be
determined by each pipeline operator for each response zone and is
calculated according to Sec. 194.105.
0
7. Revise Sec. 194.7 to read as follows:
Sec. 194.7 Operating restrictions and interim operating
authorization.
(a) Each operator of a pipeline subject to this part must prepare
and submit a response plan to PHMSA as provided in Sec. 194.119.
(b) An operator of a pipeline for which a response plan is required
under this part may not handle, store, or transport oil in that
pipeline unless the operator has submitted a response plan meeting the
requirements of this part.
(c) An operator must operate its onshore pipeline facilities
subject to this part in accordance with the response plan submitted to
PHMSA.
(d) The operator of a pipeline facility subject to this part may
continue to operate the pipeline for two years after the date of
submission of a response plan, pending approval of a plan or finding
that a plan does not meet all of the requirements of this part, only if
the operator has submitted the certification required by Sec.
194.119(e).
0
8. Add Sec. 194.9 to read as follows:
Sec. 194.9 What documents are incorporated by reference partly or
wholly in this part?
Certain material is incorporated by reference into this part with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved material is available for
inspection at Office of Pipeline Safety, Pipeline and Hazardous
Materials Safety Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590, 202-366-4046 https://www.phmsa.dot.gov/pipeline/regs, and is
available from the sources listed in paragraphs (a) through (c) of this
section. It is also available for inspection at the National Archives
and Records Administration (NARA). For information on the availability
of this material at NARA, email [email protected] or go to
www.archives.gov/federal-register/cfr/ibr-locations.html.
(a) American Petroleum Institute (API), 200 Massachusetts Avenue
NW, Suite 1100, Washington, DC 20001, and phone: 202-682-8000, website:
https://www.api.org/.
(1) ANSI/API Recommended Practice 651, ``Cathodic Protection of
Aboveground Petroleum Storage Tanks,'' 3rd edition, January 2007,
(ANSI/API RP 651), IBR approved for Sec. 194.105(b).
(2) API Recommended Practice 2350, ``Overfill Protection for
Storage Tanks in Petroleum Facilities,'' 3rd edition, January 2005,
(API RP 2350), IBR approved for Sec. 194.105(b).
(3) API Standard 620, ``Design and Construction of Large, Welded,
Low-Pressure Storage Tanks,'' 11th edition February 2008 (including
addendum 1 (March 2009), addendum 2 (August 2010), and addendum 3
(March 2012)), (API Std 620), IBR approved for Sec. 194.105(b).
(4) API Standard 650, ``Welded Steel Tanks for Oil Storage,'' 11th
edition, June 2007, effective February 1, 2012, (including addendum 1
(November 2008), addendum 2 (November 2009), addendum 3 (August 2011),
and errata (October 2011)), (API Std 650), IBR approved for Sec.
194.105(b).
(5) API Standard 653, ``Tank Inspection, Repair, Alteration, and
Reconstruction,'' 3rd edition, December 2001, (including addendum 1
(September 2003), addendum 2 (November 2005), addendum 3 (February
2008), and errata (April 2008)), (API Std 653), IBR approved for Sec.
194.105(b).
(b) National Fire Protection Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02169, phone: 617-984-7275, website: https://www.nfpa.org/.
(1) NFPA 30 (2012), ``Flammable and Combustible Liquids Code,''
including Errata 30-12-1 (9/27/11), and Errata 30-12-2 (11/14/11), 2012
edition, copyright 2011, (NFPA 30), IBR approved for Sec. 194.105(b).
(2) [Reserved]
(c) United States Coast Guard (USCG), 2703 Martin Luther King Jr.
Ave. SE, Washington, DC 20593, phone: 202-372-2231, and website:
https://www.uscg.mil.
(1) ``Guidelines for the U.S. Coast Guard Oil Spill Removal
Organization Classification Program'' June 2019, IBR approved for Sec.
194.107(c).
(2) [Reserved]
Sec. 194.101 [REMOVED AND RESERVED]
0
9. Section 194.101 is removed and reserved.
Sec. 194.103 [REMOVED AND RESERVED]
0
10. Section 194.103 is removed and reserved.
0
11. Revise Sec. 194.105 to read as follows:
Sec. 194.105 Worst-case discharge.
(a) Each operator must determine the worst-case discharge (WCD) for
each of its response zones and provide the methodology, including all
calculations, used to arrive at the volume.
(b) The WCD of each response zone is the largest of the volumes
calculated in paragraphs (b)(1) and (2) of this section, as applicable.
If a response zone contains both tanks and pipelines, operators must
perform and provide the calculations for both, but the WCD remains the
largest of the two.
(1) The WCD from a pipeline is calculated using one of the
following methods:
(i) The pipeline's maximum release time in hours, plus the maximum
shutdown response time in hours (based on historic discharge data or in
the absence of such historic data, the operator's best estimate),
multiplied by the maximum flow rate expressed in barrels per hour
(based on the maximum daily capacity of the pipeline), plus the largest
line drainage volume after shutdown of the line section(s) in the
response zone expressed in barrels (cubic meters); or
(ii) A spill model that provides a description of the model in the
methodology along with inputs and variables used by the model (to
include, at a minimum: Pipe diameter, length, maximum flow rates, and
detection and shutdown times). An operator must provide model outputs
such as graphs or diagrams.
(2) The capacity of the single largest tank or battery of tanks
within a single secondary containment system, adjusted for the capacity
or size of the secondary containment system, expressed in barrels.
Operators may claim up to 75 percent prevention credits for breakout
tank secondary containment and other specific spill prevention measures
as follows:
[[Page 21156]]
------------------------------------------------------------------------
Standard
(incorporated by Credit
Prevention measure reference, see Sec. (percent)
194.9)
------------------------------------------------------------------------
(i) Secondary containment >100%... NFPA 30............. 50
(ii) Built/repaired to API API Std 620, API Std 10
standards. 650, API Std 653.
(iii) Overfill protection API RP 2350......... 5
standards.
(iv) Testing/cathodic protection.. API Std 650, ANSI/ 5
API RP 651, API Std
653.
(v) Tertiary containment or NFPA 30 (Drainage/ 5
drainage/treatment. Treatment).
------------------------------------------------------------------------
0
12. Revise Sec. 194.107 to read as follows:
Sec. 194.107 General response plan requirements.
(a) Each response plan must include procedures and identify
resources for responding to and mitigating a worst-case discharge from
an onshore oil pipeline, including in adverse weather conditions. The
operator must immediately carry out the provisions of the response plan
whenever there is an oil discharge from the facility.
(b) Each response plan must be consistent with the National Oil and
Hazardous Substance Pollution Contingency Plan (NCP) and the
appropriate Area Contingency Plan(s) (ACPs). The requirements for
consistency with the NCP and appropriate ACPs include the following:
(1) To be consistent with the NCP, a facility response plan must:
(i) Demonstrate an operator's clear understanding of the function
of the Federal response structure, by providing procedures to notify
the National Response Center that reflect the lead role of the Federal
On-Scene Coordinator in pollution response; and
(ii) Establish provisions to ensure the protection of safety at the
response site; and
(2) To be consistent with the applicable ACP the plan must:
(i) Identify and list the applicable ACPs;
(ii) Identify environmentally sensitive areas;
(iii) Establish procedures for obtaining permission for in-situ
burning from the appropriate State or Federal authorities; and
(iv) If applicable, establish the procedures for obtaining an
expedited decision on the use of dispersants or other chemicals.
(c) Each response plan must include:
(1) A core plan consisting of--
(i) An information summary as required in Sec. 194.113;
(ii) Immediate notification procedures, including notification to
the National Response Center in accordance with Sec. 195.52;
(iii) Spill detection and mitigation procedures;
(iv) The name, address, and telephone number of the OSRO, if
appropriate;
(v) Response activities;
(vi) A list of response resources, unless the operator provides
evidence of a signed, current contract with an OSRO classified by the
U.S. Coast Guard as a WCD Tier 1 organization, as defined and described
in 33 CFR part 154 and ``Guidelines for the U.S. Coast Guard Oil Spill
Removal Organization Classification Program,'' for the operating
environments (``River/Canal,'' ``Inland,'' or ``Great Lakes,'')
applicable to the location of the pipeline;
(vii) Names and telephone numbers of Federal, State, and local
agencies which the operator expects to have pollution control
responsibilities or support;
(viii) Training procedures;
(ix) Equipment testing, if an operator owns its response equipment;
(x) Description of a drill and exercise program. An operator will
satisfy the requirement for a drill and exercise program by following
the current National Preparedness for Response Exercise Program (PREP)
guidelines. An operator choosing not to follow PREP guidelines must
have a drill and exercise program that is equivalent to current PREP
guidelines. The operator must describe the drill program in the
response plan and PHMSA's Office of Pipeline Safety (OPS) will
determine if the program is equivalent to PREP;
(xi) Procedures to provide Safety Data Sheets meeting 29 CFR
1910.1200 to emergency responders and the FOSC within 6 hours of notice
of a spill to the National Response Center; and
(xii) Plan review and update procedures;
(2) An appendix for each response zone that includes the
information required in paragraphs (c)(1)(i) through (ix) of this
section and the worst-case discharge calculations that are specific to
that response zone. An operator submitting a response plan for a single
response zone does not need to have a core plan and a response zone
appendix. The operator of a single response zone must have a single
summary in the plan that contains the required information in Sec.
194.113; and
(3) A description of the operator's incident command system
including the functional areas of finance, logistics, operations,
planning, and command. The plan must demonstrate that the operator's
incident command system uses common terminology and has a manageable
span of control, a clearly defined chain of command, and sufficient
trained personnel to fill each position.
0
13. Revise Sec. 194.109 to read as follows:
Sec. 194.109 Submission of state response plans.
(a) An operator may submit a response plan that complies with State
law or regulation, if the State law or regulation requires a plan that
provides equivalent or greater spill protection than a plan required
under this part.
(b) A plan submitted under this section must:
(1) Have an information summary required by Sec. 194.113; and
(2) Ensure through contract or other PHMSA-approved means the
necessary private personnel and equipment to respond to a worst-case
discharge or a substantial threat of such a discharge.
(c) An operator may submit a response plan prepared to comply with
State law or regulation if the operator adds a DOT annex to the plan
that meets all additional requirements of this part not addressed in
the State plan.
0
14. In Sec. 194.113:
0
a. Revise paragraphs (a)(2), (b) introductory text, and (b)(3) and (4);
0
b. Remove paragraph (b)(5);
0
c. Redesignate paragraph (b)(6) as paragraph (b)(5); and
0
d. Revise newly redesignated paragraph (b)(5).
The revisions read as follows:
Sec. 194.113 Information summary.
(a) * * *
(2) A list of the response zone appendices for which the core plan
is applicable.
(b) The information summary for each response zone appendix or for
plans with a single response zone, required in Sec. 194.107, must
include:
* * * * *
(3) The description or map of the response zone, including
county(s) and state(s), for each response zone;
(4) A list or map of line sections for each pipeline contained in
the response zone, identified by milepost or survey station number, or
other operator
[[Page 21157]]
designation. If an operator has submitted the PHMSA issued Facility
Response Plan (FRP) identification number in its submission to the
National Pipeline Mapping System (NPMS) in accordance with Sec. 191.29
of this chapter, they may reference the NPMS to satisfy this
requirement; and
(5) The type of oil and volume of the worst-case discharge.
0
15. Revise Sec. 194.115 to read as follows:
Sec. 194.115 Response resources.
(a) Each operator must identify and ensure the resources necessary
to remove or mitigate to the maximum extent practicable, a worst-case
discharge in accordance with 33 CFR part 154, appendix C. Each operator
must provide documentation of these resources by contract or other
PHMSA-approved means.
(b) When determining the necessary resources for each response tier
in accordance with paragraph (a) of this section, an operator must use
the response times specified in paragraphs (b)(1) and (2) of this
section, rather than the times referenced in 33 CFR part 154, appendix
C. Tier 1, Tier 2, and Tier 3 are different levels of response
resources; Tier 1 represents the resources available within 12 hours (6
hours in a high-volume area) for an initial local response, while Tier
3 represents national-level resources available within 60 hours (54
hours in a high-volume area) that may be needed for spills with
extensive impacts.
----------------------------------------------------------------------------------------------------------------
Tier 1-- Tier 2-- Tier 3--
initial local regional national
response response response
----------------------------------------------------------------------------------------------------------------
(1) High-volume area............................................ 6 hrs. 30 hrs. 54 hrs.
(2) All other areas............................................. 12 hrs. 36 hrs. 60 hrs.
----------------------------------------------------------------------------------------------------------------
0
16. Revise Sec. 194.119 to read as follows:
Sec. 194.119 Submission and approval procedures.
(a) Each operator must submit an electronic copy of the response
plan required by this part. The response plan must be submitted to
[email protected] or other PHMSA-approved electronic means.
(b) If PHMSA determines that a response plan does not meet all the
requirements of this part, PHMSA will notify the operator of any
alleged deficiencies. The operator has an opportunity to respond to
PHMSA's notice within 30 days of issuance, including the opportunity
for an informal conference, on any proposed plan revisions and an
opportunity to correct any deficiencies.
(c) An operator who disagrees with PHMSA's determination that a
plan contains alleged deficiencies may petition PHMSA for
reconsideration within 30 days from the date of receipt of PHMSA's
notice. After considering all relevant material presented in writing or
at an informal conference, PHMSA will notify the operator of its final
decision. The operator must comply with the final decision within 30
days of issuance unless PHMSA allows additional time.
(d) PHMSA will approve the response plan if PHMSA determines that
the response plan meets all requirements of this part. PHMSA may
consult with the EPA or the USCG if a FOSC has concerns about the
operator's ability to respond to a worst-case discharge.
(e) If PHMSA has not approved a response plan for a pipeline
described in this part, the operator may submit a certification to
PHMSA that the operator has obtained, through contract or other
approved means, the necessary personnel and equipment to respond to a
worst-case discharge or a substantial threat of such a discharge to the
maximum extent practicable. The certificate must be signed by the
qualified individual or an appropriate corporate officer.
(f) If PHMSA receives a request from an FOSC to review a response
plan, PHMSA may provide a copy of the response plan to the FOSC. PHMSA
may consider FOSC comments on response techniques, protecting fish,
wildlife, and sensitive environments, and on consistency with the ACP.
PHMSA remains the approving authority for the response plan.
0
17. In Sec. 194.121, revise paragraphs (a), (b)(1), (7), and (8), and
(c) to read as follows:
Sec. 194.121 Response plan review and update procedures.
(a) Each operator must update its response plan to address new or
different operating conditions or information. In addition, each
operator must review and resubmit its response plan in full at least
every 5 years from the date of the last approval.
(b) * * *
(1) A new oil pipeline or an extension of an existing pipeline in a
response zone where the new or extended pipeline is not covered by a
previously approved plan prior to filling the pipeline with oil. An
operator must include a list or map of the new oil pipeline or
extension if the information is not available in NPMS per Sec.
194.113(b)(4);
* * * * *
(7) A change in the NCP or an ACP that has a significant impact on
the equipment appropriate for response activities; and
(8) Any other information relating to circumstances that may affect
the full implementation of the plan.
(c) If PHMSA determines that a change to a response plan does not
meet the requirements of this part, PHMSA will notify the operator of
any alleged deficiencies, and provide the operator an opportunity to
respond to PHMSA's notice within 30 days, including an opportunity for
an informal conference, to any proposed plan revisions and an
opportunity to correct any deficiencies.
* * * * *
0
18. Amend appendix A to part 194 as follows:
0
a. In ``Response Plan: Section 1. Information Summary,'' revise
paragraphs (a)(2) and (b)(3) and (4), remove paragraph (b)(5),
redesignate paragraph (b)(6) as paragraph (b)(5), and revise newly
redesignated paragraph (b)(5);
0
b. In ``Response Plan: Section 2. Notification Procedures,'' revise
paragraph (a);
0
c. In ``Response Plan: Section 4. Response Activities,'' revise
paragraph (d);
0
d. In ``Response Plan: Section 5. List of Contacts,'' revise the
introductory text;
0
e. In ``Response Plan: Section 7,'' revise the heading and paragraphs
(a) and (b)(2); and
0
f. In ``Response plan: Section 9. Response Zone Appendices,'' revise
paragraphs (a), (d), (e), and (k)(2).
The revisions read as follows:
Appendix A to Part 194--Guidelines for the Preparation of Response
Plans
* * * * *
[[Page 21158]]
Response Plan: Section 1. Information Summary
* * * * *
(a) * * *
(2) A list of response zone appendices applicable to the core
plan.
(b) * * *
(3) A description or map of the response zone, including
county(s) and state(s);
(4) A list of line sections contained in the response zone,
identified by milepost or survey station number or other operator
designation or statement that the PHMSA assigned FRP identification
is provided in the National Pipeline Mapping System; and
(5) The type of oil and volume of the worst-case discharge.
* * * * *
Response Plan: Section 2. Notification Procedures
* * * * *
(a) Notification requirements that apply in each area of
operation of pipelines covered by the plan, including notification
to the National Response Center and applicable State or local
requirements;
* * * * *
Response Plan: Section 4. Response Activities
* * * * *
(d) Oil spill removal organizations available, through contract
or other approved means, to respond to a worst-case discharge to the
maximum extent practicable; and
* * * * *
Response Plan: Section 5. List of Contacts
Section 5 would include the names and addresses of the following
individuals or organizations, with 10-digit telephone numbers at
which they can be contacted on a 24-hour basis:
* * * * *
Response Plan: Section 7. Drill and Exercise Procedures
* * * * *
(a) Announced and unannounced exercises;
(b) * * *
(2) Exercises involving emergency actions by assigned operating
or maintenance personnel and notification of the qualified
individual on pipeline facilities that are normally unattended
conducted quarterly.
* * * * *
Response Plan: Section 9. Response Zone Appendices.
* * * * *
(a) The names and 10-digit telephone numbers of the qualified
individuals;
* * * * *
(d) Name, address, and telephone number of the OSRO;
(e) Response activities and response resources including--
(1) Equipment and supplies necessary to meet Sec. 194.115;
(2) The trained personnel necessary to sustain operation of the
equipment and to staff the OSRO and incident management team for the
first 7 days of the response; and
(3) Procedures to obtain permission to use applicable
alternative response strategies, such as in-situ burning or
dispersants, consistent with applicable ACPs;
* * * * *
(k) * * *
(2) Procedures to provide Safety Data Sheets meeting 29 CFR
1910.1200 to emergency responders and the FOSC within 6 hours of a
spill.
Appendix B to Part 194 [Amended]
0
19. In appendix B to part 194, add ``The Great Lakes'' to the list of
``Other Navigable Waters'' in alphabetical order.
PART 195--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE
0
20. Revise the authority citation for part 195 to read as follows:
Authority: 30 U.S.C. 185(w)(3), 49 U.S.C. 5103, 60101 et seq.,
and 49 CFR 1.97.
0
21. In Sec. 195.3, revise paragraphs (a) and (b) introductory text to
read as follows:
Sec. 195.3 What documents are incorporated by reference partly or
wholly in this part?
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. All approved material is available for
inspection at Office of Pipeline Safety, Pipeline and Hazardous
Materials Safety Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590, 202-366-4046, https://www.phmsa.dot.gov/pipeline/regs, and is
available from the sources listed in this section. It is also available
for inspection at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA,
email [email protected] or go to www.archives.gov/federal-register/cfr/ibr-locations.html.
(b) American Petroleum Institute (API), 200 Massachusetts Ave NW,
Suite 1100, Washington, DC 20001, and phone: 202-682-8000, website:
https://www.api.org/.
* * * * *
0
22. In Sec. 195.50, revise paragraph (e) to read as follows:
Sec. 195.50 Reporting accidents.
* * * * *
(e) Estimated property damage, including the cost of clean-up and
recovery, value of lost product, and damage to the property of the
operator or others, or both, exceeding $118,000.
0
23. In Sec. 195.52, revise paragraph (a)(3) to read as follows:
Sec. 195.52 Immediate notice of certain accidents.
(a) * * *
(3) Caused estimated property damage, including cost of cleanup and
recovery, value of lost product, and damage to the property of the
operator or others, or both, exceeding $118,000;
* * * * *
0
24. In Sec. 195.573, revise paragraph (c) to read as follows:
Sec. 195.573 What must I do to monitor external corrosion control?
* * * * *
(c) Rectifiers and other devices. Any device listed in table 2 to
this paragraph (c) must be periodically electrically checked to ensure
that adequate amperage and voltage levels needed to provide cathodic
protection are maintained. An operator may perform checks at the
equipment's physical location or by remote monitoring. The second
column of table 2 to this paragraph (c) prescribes minimum frequencies
for checks required for devices listed in the first column.
Table 2 to Paragraph (c)
------------------------------------------------------------------------
Device Minimum frequency for checks
------------------------------------------------------------------------
Rectifier Reverse current switch Diode.... At least six times each
calendar year, but with
intervals not exceeding 2\1/
2\ months between
inspections.
Interference bond whose failure would ............................
jeopardize structural protection.
Other interference bond................... At least once each calendar
year, but with intervals
not exceeding 15 months
between inspections.
------------------------------------------------------------------------
(1) Inspections may be done through remote measurement or through
an onsite inspection of the device.
(2) Each remotely monitored rectifier must be physically inspected
for continued safe and reliable operation whenever cathodic protection
tests occur pursuant to paragraph (a)(1) of this section.
* * * * *
0
25. Amend appendix C to part 195 as follows:
0
a. Revise the introductory text and paragraphs I.B(3) and (6) through
(11);
0
b. Remove paragraph I.B(12); and
0
c. Revise paragraphs II.A(11), (15), and (17).
The revisions read as follows:
Appendix C to Part 195--Guidance for Implementation of an Integrity
Management Program
This appendix gives guidance to help an operator implement
integrity management
[[Page 21159]]
program requirements in Sec. Sec. 195.450 and 195.452. This
appendix is intended to give advice to operators on how to implement
the requirements of the integrity management requirements. This
appendix is not legally binding and conformity with this appendix is
voluntary only. However, if an operator incorporates parts of this
appendix into its integrity management program, the operator must
then comply with those provisions. Guidance is provided on:
(1) Information an operator may use to identify a high
consequence area and factors an operator can use to consider the
potential impacts of a release on an area;
(2) Risk factors an operator can use to determine an integrity
assessment schedule;
(3) Safety risk indicator tables for leak history, volume or
line size, age of pipeline, and product transported, an operator may
use to determine if a pipeline segment falls into a high, medium or
low risk category;
(4) Types of internal inspection tools an operator could use to
find pipeline anomalies;
(5) Measures an operator could use to measure an integrity
management program's performance; and
(6) Types of records an operator will have to maintain.
(7) Types of conditions that an integrity assessment may
identify that an operator should include in its required schedule
for evaluation and remediation.
I. * * *
B. * * *
(3) Crossing of farm tile fields. Using available information
and knowledge, an operator should consider the possibility of
spillage in a field following a drain tile into a waterway.
* * * * *
(6) Operating conditions of the pipeline (pressure, flow, mode
of operation, etc.).
(7) The hydraulic gradient of the pipeline.
(8) The diameter of the pipeline, the potential release volume,
and the distance between the isolation points.
(9) Potential physical pathways between the pipeline and the
high-consequence area.
(10) Response capability (time to respond, nature of response).
(11) Potential of terrain and waterways to be flooded and serve
as a conduit to a high consequence area.
II. * * *
A. * * *
(11) Location related to potential flooding or ground movement
(e.g., flood zones, seismic faults, rock quarries, and coal mines);
climatic (permafrost causes settlement--Alaska); geologic
(earthquakes, landslides or subsidence areas).
* * * * *
(15) Operating conditions of the pipeline (pressure, stress
levels, flow rate, etc.). Consider if the pipeline has been exposed
to an operating pressure exceeding the established maximum operating
pressure.
* * * * *
(17) Physical support of the pipeline segment such as by a cable
suspension bridge. An operator should look for stress indicators on
the pipeline (strained supports, inadequate support at towers),
atmospheric corrosion, vandalism, and other obvious signs of
improper maintenance.
* * * * *
Issued in Washington, DC on March 13, 2020, under authority
delegated in 49 CFR 1.97.
Alan K. Mayberry,
Associate Administrator for Pipeline Safety.
[FR Doc. 2020-05721 Filed 4-15-20; 8:45 am]
BILLING CODE 4910-60-P