[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73173-73186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27751]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 195
[Docket No. PHMSA-2017-0152; Amdt. No. 195-104]
RIN 2137-AF31
Pipeline Safety: Unusually Sensitive Areas for the Great Lakes,
Coastal Beaches, and Certain Coastal Waters
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Interim final rule.
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SUMMARY: PHMSA is amending the pipeline safety regulations to
explicitly state that certain coastal waters, the Great Lakes, and
coastal beaches are classified as unusually sensitive areas for the
purpose of compliance with the hazardous liquid integrity management
regulations. This amendment implements mandates contained in the
Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES)
Act of 2016, as amended by the PIPES Act of 2020. A hazardous liquid
pipeline that could affect these newly designated areas must be
included in an operator's integrity management program.
DATES: The effective date of the interim final rule is February 25,
2022. Submit comments by February 25, 2022.
ADDRESSES: You may submit comments, identified by Docket No. PHMSA-
2017-0152, by any of the following methods:
E-Gov Web: http://www.regulations.gov. This site allows
the public to enter comments on any Federal Register notice issued by
any agency. Follow the online instructions for submitting comments.
Mail: Docket Management System: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery: DOT Docket Management System: West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9:00
a.m. and 5:00 p.m. ET, Monday through Friday, except Federal holidays.
[[Page 73174]]
Fax: 202-493-2251.
Instructions: Identify the Docket No. PHMSA-2017-0152, at
the beginning of your comments. If you submit your comments by mail,
submit two copies. If you wish to receive confirmation that PHMSA
received your comments, include a self-addressed stamped postcard.
Internet users may submit comments at http://www.regulations.gov.
Note: All comments received are posted without edits to
http://www.regulations.gov, including any personal information
provided. Please see the Privacy Act heading below.
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 www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at www.dot.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 (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments in response 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 Code of Federal
Regulations (CFR) 190.343, you may ask PHMSA to provide 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 a copy of the
original document with the CBI deleted along with the original,
unaltered document; and (3) explain why the information you are
submitting is CBI. Submissions containing CBI should be sent to Sayler
Palabrica, 1200 New Jersey Avenue SE, DOT: PHMSA--PHP-30, Washington,
DC 20590-0001. Any commentary PHMSA receives that is not specifically
designated as CBI will be placed in the public docket.
Docket: For access to the docket to read background
documents or comments received, go to http://www.regulations.gov.
Follow the online instructions for accessing the dockets.
Alternatively, you may review the documents in person at the street
address listed above.
FOR FURTHER INFORMATION CONTACT: Sayler Palabrica by phone at 202-744-
0825 or via email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Hazardous Liquid Integrity Management
III. National Pipeline Mapping System
IV. Consequences of Hazardous Liquid Pipeline Spills in Coastal
Areas and the Great Lakes
V. Legislative and Administrative History
VI. Summary of Amendments
VII. Effective Date and Comments
VIII. Good Cause Exception
IX. Regulatory Analyses and Notices
I. Introduction
PHMSA issues this interim final rule (IFR) to satisfy mandates
within the PIPES Act of 2016 (Pub. L. 114-183) and the PIPES Act of
2020 (Pub. L. 116-260) to expand application of PHMSA's integrity
management (IM) requirements to approximately 2,905 additional miles of
hazardous liquid and carbon dioxide pipelines \1\ located within or
that could affect the Great Lakes, coastal beaches, or ``certain
coastal waters.'' The IFR will provide enhanced protection from
hazardous liquid pipeline accidents similar to the 2010 Marshall, MI
and the 2015 Refugio Beach, CA oil spills, and ensure that events like
the anchor strike that damaged Enbridge's Line 5 in the Straits of
Mackinac are promptly identified and remediated before they result in
environmental damage.
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\1\ Hereinafter, references to ``hazardous liquid'' pipelines
will refer to both hazardous liquid and carbon dioxide pipelines for
simplicity, as they are both governed by 49 CFR part 195.
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Hazardous liquid pipelines that could affect a high consequence
area (HCA) are subject to additional safety requirements. Specifically,
such pipelines must be included in an IM program. An HCA is defined in
49 CFR 195.450 as a commercially navigable waterway, a high population
area, an other populated area, or an unusually sensitive area (USA) as
defined in Sec. 195.6. Section 195.6 identifies two types of USAs,
``USA drinking water resources'' and ``USA ecological resources.''
Every USA is, therefore, also an HCA. Under Sec. 195.452, an operator
of a hazardous liquid pipeline that is located in a USA, or in an area
where a release could affect a USA, is required to comply with IM
requirements. Section 19 of the PIPES Act of 2016 amended 49 U.S.C.
60109(b)(2) and directed PHMSA to revise the definition of a USA in
Sec. 195.6(b) to explicitly state that the Great Lakes, coastal
beaches, and marine coastal waters are USA ecological resources.
Congress further clarified this mandate in Section 120 of the PIPES Act
of 2020 (division R of the Consolidated Appropriations Act of 2021,
Pub. L. 116-260). With this clarification, the PIPES Act of 2020
introduced and defined the term ``certain coastal waters'' to replace
the undefined term ``marine coastal waters.'' Congress defined
``certain coastal waters'' as the ``territorial sea of the United
States; the Great Lakes and their connecting waters; and the marine and
estuarine waters of the United States up to the head of tidal
influence.'' Furthermore, Congress defined the term ``coastal beach''
as ``any land between the high- and low-water marks of certain coastal
waters.'' This IFR incorporates these terms and the statutory
definitions into Sec. 195.6, as directed by Congress.
PHMSA maintains a map of HCAs, excluding proprietary or security
sensitive information, in the National Pipeline Mapping System (NPMS)
pursuant to 49 U.S.C. 60132(d). PHMSA intends to map ``certain coastal
waters'' and ``coastal beaches'' as a single data layer within the
NPMS. PHMSA will generate this map based on a combination of geographic
information system (GIS) data from the National Oceanic and Atmospheric
Administration (NOAA) Clean Water Act \2\ dataset, U.S. Environmental
Protection Agency (EPA) Estuary Data Mapper,\3\ and the NOAA Sea Level
Rise Viewer.\4\ Each of these datasets are generated by expert
scientific agencies of the Federal government and are available on the
internet for public viewing. These datasets are further described in
section VI of this IFR. PHMSA seeks comments on the use of these
datasets to represent the location of the statutory definitions of
``certain coastal waters'' and ``coastal beaches'' in the NPMS.
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\2\ NOAA Office for Coastal Management, ``Clean Water Act
Dataset'' (Nov. 9, 2016), https://catalog.data.gov/dataset/clean-water-act (last accessed October 13, 2021).
\3\ EPA, ``High End Scientific Computing--Estuary Data Mapper
Dataset'' (Dec. 7, 2020), https://www.epa.gov/hesc/estuary-data-mapper-edm (last accessed June 21, 2021).
\4\ NOAA Office for Coastal Management, ``Sea Level Rise Viewer
Dataset'' (July 2020), https://catalog.data.gov/dataset/noaa-digital-coast-sea-level-rise-and-coastal-flooding-impacts-viewer
(last accessed October 13, 2021).
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While the primary effect of the IFR is expanding the hazardous
liquid pipeline mileage subject to IM program requirements, defining
new USAs also affects the requirements for certain pipelines in rural
areas. Proximity to a USA also determines if an onshore rural gathering
line is a regulated rural gathering line subject to safety requirements
described in Sec. 195.11(b). Additionally, a pipeline categorized as a
[[Page 73175]]
Category 3 rural low-stress pipeline could become a Category 1 or
Category 2 pipeline if it is located within \1/2\ mile of a USA.
PHMSA is not changing the definition of ``offshore'' in Sec. Sec.
192.3 or 195.2 as a part of this IFR. Those sections define
``offshore'' to mean beyond the line of ordinary low water along that
portion of the coast of the United States that is in direct contact
with the open seas and beyond the line marking the seaward limit of
inland waters. The new USAs defined in Sec. 195.6 do not affect the
definition of ``offshore'' in Sec. Sec. 192.3 or 195.2. Even if data
used to map the new USAs refer to ``offshore'' areas as defined or
designated by a separate statute, such as the Submerged Lands Act (43
U.S.C. 1301 et seq.), the regulatory definition of ``offshore'' in
Sec. Sec. 192.3 and 195.2 is distinct from these other statutes and
will remain unchanged. In other words, the definitions of ``coastal
beach'' and ``certain coastal waters'' exist independently of the
definition of ``offshore'' in Sec. Sec. 192.3 or 195.2. A pipeline
could be located within certain coastal waters and be either
``onshore'' or ``offshore'' under Sec. Sec. 192.3 and 195.2.
Accordingly, altering the definition of ``offshore'' is beyond the
scope of this IFR.
II. Hazardous Liquid Integrity Management
The objective of the hazardous liquid IM requirements at Sec.
195.452 is to reduce the risks of pipeline spills in areas where a
release could have significant consequences. In a series of final rules
published between 2000 and 2002, PHMSA's predecessor agency, the
Research and Special Programs Administration, promulgated regulations
that defined HCAs and required operators to develop and implement IM
programs for each hazardous liquid pipeline that could affect an HCA in
the event of a release. HCAs are defined in Sec. 195.450 and represent
areas where a release could have significant adverse consequences to
human health and safety, the environment, and commercial navigation.
The IM requirements that operators must implement to protect HCAs are
specified in Sec. 195.452.
IM requirements for hazardous liquid pipelines were implemented in
four final rules. The first final rule was ``Pipeline Integrity
Management in High Consequence Areas (Hazardous Liquid Operators with
500 or More Miles of Pipeline),'' \5\ followed by ``Areas Unusually
Sensitive to Environmental Damage,'' \6\ and ``Pipeline Integrity
Management in High Consequence Areas (Hazardous Liquid Operators with
Less Than 500 Miles of Pipelines).'' \7\ PHMSA made updates to these
requirements in a 2019 final rule titled ``Safety of Hazardous Liquid
Pipelines.'' \8\ These rules established a regulatory framework focused
on risk identification, assessment, and mitigation. PHMSA's IM
regulations require operators of pipelines located in areas where a
release could affect an HCA to take additional steps to address threats
to the integrity of those pipelines by operating and maintaining those
pipelines in accordance with an effective IM program. These measures
require operators to devote additional analysis, assessment, and
remediation resources to protect HCAs from pipeline releases that could
adversely affect human health and safety, cause environmental damage,
and disrupt commercial navigation.
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\5\ 65 FR 75377 (Dec. 1, 2000).
\6\ 64 FR 9532 (Feb. 8, 2001).
\7\ 67 FR 2136 (Jan. 16, 2002).
\8\ 84 FR 52260 (Oct. 1, 2019).
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A. High Consequence Areas
Section 195.450 of the existing hazardous liquid pipeline safety
regulations defines an HCA as: (1) A commercially navigable waterway,
which means a waterway where a substantial likelihood of commercial
navigation exists; (2) a high population area, which means an urbanized
area, as defined and delineated by the U.S. Census Bureau, that
contains 50,000 or more people and has a population density of at least
1,000 people per square mile; (3) an other populated area, which means
a place, as defined and delineated by the U.S. Census Bureau, that
contains a concentrated population, such as an incorporated or
unincorporated city, town, village, or other designated residential or
commercial area; or (4) an unusually sensitive area, which is defined
in Sec. 195.6 to be a drinking water or ecological resource area that
is unusually sensitive to environmental damage from a hazardous liquid
pipeline release. Section 195.452(d)(2) requires operators to
incorporate newly identified HCAs into their baseline assessment plans
within one year from the date the area is identified, and complete a
baseline assessment of any pipeline that could affect the newly
identified HCA within 5 years from the date the area is so designated.
B. Unusually Sensitive Areas
Section 195.6 defines a USA as a drinking water or ecological
resource area that is unusually sensitive to environmental damage from
a hazardous liquid pipeline release. The regulatory definition of USA
elaborates that a drinking water resource generally refers to a source
of drinking water (e.g., a surface water intake, a source water
protection area for wells, or a recharge area for a karst aquifer) for
a community water system, or a non-transient, non-community water
system (e.g., a school or factory) with no adequate alternative supply
of drinking water. The definition of a USA ecological resource includes
areas containing one or more critically imperiled species or ecological
communities; a multi-species assemblage area; a migratory waterbird
concentration area; and an area containing an imperiled, threatened,
endangered species, depleted marine mammal species, or an imperiled
ecological community containing species with a limited range.
C. Integrity Management Requirements
As described above, every USA is an HCA, and a hazardous liquid
pipeline that could affect an HCA must be included in an operator's
hazardous liquid IM program. Section 195.452(b) requires an operator to
develop and follow a written IM program. Section 195.452(f) requires
that a hazardous liquid pipeline IM program include each of the
following elements:
A process for identifying pipelines that could affect an
HCA, including USAs (see Sec. Sec. 195.6, 195.450, Appendix C to part
195, ``Guidance for Implementation of an Integrity Management
Program'');
A plan for scheduling and performing baseline assessments
(Sec. 195.452(c));
An analysis of pipeline safety risks that integrates all
available information about pipeline integrity and potential
consequences (Sec. 195.452(g));
Criteria for performing remedial action in response to
pipeline integrity issues identified during assessments or other
analysis (Sec. 195.452(h));
A continuous process for scheduling, performing, and
interpreting integrity assessments and evaluations (Sec. 195.452(j));
Identification of ``preventative and mitigative measures''
to protect the pipeline from identified integrity threats (Sec.
195.452(i));
Procedures for evaluating the effectiveness of the IM
program (Sec. 195.452(k)); and
A process to ensure integrity assessment results and
information analysis is performed by qualified personnel (Sec.
195.452(f)(8)).
[[Page 73176]]
When an operator determines that a pipeline segment could affect an
HCA, it must integrate information about that segment, including
information about potential consequences, into its risk analysis and
add the segment to the baseline assessment plan. The minimum data
attributes operators are required to consider are listed in Sec.
195.452(g)(1). This includes information about the pipeline itself;
excavation damage threats; information about the potential impacts of a
release on an HCA; and data from integrity assessments, cathodic
protection surveys, patrols, and other maintenance and surveillance
tasks. This analysis is used to prioritize and schedule integrity
assessments and identify preventative and mitigative measures.
If a pipeline segment could affect a newly identified USA as a
result of this IFR, the operator must include that segment in their IM
program and periodically assess the integrity of that segment. Section
195.452(d)(2) requires an operator to add pipelines that cross or could
affect new HCAs into their baseline assessment plan within 1 year of
obtaining that new HCA information and complete the baseline assessment
within 5 years of that date. Section 195.452(c)(1)(i) requires that the
baseline assessment be done with an in-line inspection tool unless
construction or operational factors make an in-line inspection
impracticable. The operator must select an in-line inspection tool, or
combination of tools, capable of detecting, at a minimum, corrosion and
dents. If cracking is identified as a probable integrity threat, then
the operator must select a tool or combination of tools capable of
detecting cracks. If an in-line inspection is impracticable, an
operator may perform a baseline assessment using a pressure test,
external corrosion direct assessment, or other technology with advance
notification to PHMSA.
After the baseline assessment, a segment that could affect an HCA
must be reassessed regularly. The assessment schedule for both the
baseline assessment and reassessments must be established by
considering all risk factors, including, at a minimum, each of the
factors listed in Sec. 195.452(e). Section 195.452(j)(3) requires
operators to continually assess the pipeline's integrity at no greater
than 5-year intervals, not to exceed 68 months, except as provided in
Sec. 195.452(j)(4). If the operator detects a defect during an
assessment, the operator must remediate it pursuant to the requirements
in Sec. 195.452(h) and the operator's procedure. That paragraph
requires an operator to establish repair criteria that meet minimum
standards for remediation methods and repair of various repair
conditions.
In addition to assessment and repair requirements, operators must
use a risk analysis to identify preventative and mitigative measures
necessary to avert negative impacts in HCAs. Examples of preventative
and mitigative measures identified in Sec. 195.452(i) include adopting
damage prevention best practices, improving cathodic protection
monitoring, shortening inspection intervals, installing emergency flow
restricting devices,\9\ installing leak detection equipment, or
providing enhanced response training to operator personnel and
emergency responders. Operators must implement preventative and
mitigative measures based on an analysis of the likelihood of a
pipeline release and the potential consequences of the release. The
minimum elements of this risk analysis are described in Sec.
195.452(i)(2). Pipelines that could affect an HCA must have a means to
detect leaks on the pipeline system(s) pursuant to Sec. 195.452(i)(3),
though Sec. Sec. 195.134 and 195.444 require leak detection systems on
hazardous liquid pipeline systems outside of HCAs as well.
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\9\ A check valve or a remote control valve as defined in Sec.
195.450.
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III. National Pipeline Mapping System
A. NPMS Introduction
PHMSA maintains a map of HCAs in the NPMS pursuant to 49 U.S.C.
60132(d). The NPMS includes GIS resources that allow users to view
pipeline maps and pipeline operations information, depending on the
profile of the user. The NPMS contains locations and information about
gas transmission and hazardous liquid pipelines and liquefied natural
gas (LNG) plants under PHMSA jurisdiction. The NPMS also contains
hazardous liquid pipeline HCA data \10\ and voluntarily submitted
breakout tank \11\ data. NPMS data for hazardous liquid pipeline
facilities include geospatial data, attribute data for pipeline
segments, metadata, and operator contact information. Operators are
required to submit NPMS data annually or review their current data in
the NPMS to confirm it is still accurate pursuant to Sec. 195.61.
PHMSA processes operator data submissions year-round and the online
mapping applications and resources are updated approximately every
other month. These data and submission requirements are described in
further detail in Sec. 195.61 and the Operator Standards Manual,
available on the NPMS web page.\12\
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\10\ While HCAs for hazardous liquid pipelines are defined areas
under Sec. 195.450, HCAs for gas pipelines are identified under
Sec. 192.903 based on the location, diameter, and maximum allowable
operating pressure of the pipeline and the pipeline's proximity to
nearby structures. See also 49 U.S.C. 60109(b).
\11\ A breakout tank is a storage tank in a hazardous liquid
pipeline system used as part of the transportation of hazardous
liquids by pipeline. See Sec. 195.2.
\12\ PHMSA, ``National Pipeline Mapping System Standards for
Pipeline, Liquefied Natural Gas and Breakout Tank Farm Operator
Submissions'' (Oct. 2017). https://www.npms.phmsa.dot.gov/Documents/Operator_Standards.pdf. (last accessed June 21, 2021).
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The NPMS contains information from over 1,500 operators totaling
over 225,000 miles of hazardous liquid pipelines and over 310,000 miles
of gas transmission pipelines. Operators also voluntarily provided
information on the location of 3,476 breakout tanks out of 8,412
reported in annual reports for the 2019 reporting year. PHMSA and
others use NPMS data for a wide variety of purposes, including
emergency response, inspection planning, risk assessment, regulatory
support, spatial analysis, map production, public awareness, and
education.
B. NPMS Access to Geospatial Data
The NPMS website is structured into three pages by user-type to
facilitate access to available information and resources. The pages
include: (1) The Government Official Portal, intended for government
officials at the local, State, or Federal level, including emergency
responders and tribal governments; (2) the Operator Portal, intended
for employees of pipeline operators who contribute data to the NPMS,
including operators of gas transmission or hazardous liquid pipelines,
breakout tanks, and LNG plants under PHMSA jurisdiction; \13\ and (3)
the General Public Portal, available for members of the public. The
General Public Portal includes information about gas transmission and
hazardous liquid pipelines, an operator directory, and the NPMS Public
Map Viewer for exploring or printing NPMS maps on a per-county basis.
The General Public Portal also has maps of HCAs. This includes the
location of high-population areas derived from U.S. Census Bureau data
and commercially navigable waterways from the U.S. Army Corps of
Engineers' National Waterway Network. As an initial step to implement
Section 19 of the PIPES Act of 2016, PHMSA, in 2019, incorporated GIS
data for the Great Lakes USA ecological resource to the NPMS based on
the definition of the Great Lakes from 33 U.S.C. 1268 and
[[Page 73177]]
geospatial information from NOAA's U.S. State Submerged Lands
dataset.\14\ NOAA updates this dataset as needed to ensure accuracy in
depicting Great Lakes shorelines and last updated the dataset in 2016.
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\13\ Operators can also use the Operator Portal to access
information regarding NPMS data submission requirements, procedures,
and HCA GIS data layers to support IM program planning.
\14\ PHMSA, Press Release, ``PHMSA ID's Great Lakes as an
Ecological Resource in NPMS'' (Oct. 21, 2019), https://www.phmsa.dot.gov/news/phmsa-ids-great-lakes-ecological-resource-npms.
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In addition to the three user-type pages discussed above, PHMSA has
also developed the Pipeline Information Management Mapping Application
(PIMMA). PIMMA is a password-protected, web-based mapping application
limited to government officials and pipeline operators. Each government
user only has access to the maps of pipelines in their area of
jurisdiction, and each operator user only has access to maps of the
pipelines they operate. Government officials or operators can apply for
PIMMA access or log in to PIMMA from the NPMS homepage. Information on
how to use and access PIMMA is available within the Government Official
and Operator Portals.
Government officials and operators can request access to pipeline
facility GIS data from the NPMS for use in their own GIS. This option
allows government officials and operators to produce maps and conduct
analyses. Government officials and operators may also apply for access
to the NPMS pipeline facility GIS data in their area of jurisdiction or
for the pipeline facilities they operate. Hazardous liquid operators
may only access USA GIS data for the States in which they operate or
are constructing hazardous liquid pipelines. Except for HCA and USA GIS
data available on the General Public Portal (i.e., populated areas,
commercially navigable waterways, and the Great Lakes), all GIS data
from the NPMS is considered for official use only and requires an
application process that can include an official request letter from a
pipeline company manager. Detailed instructions for access to GIS data
from the NPMS are available on the NPMS website at https://www.npms.phmsa.dot.gov/. PHMSA conducts reviews of publicly available
dataset updates every two years to maintain HCA data accuracy. PHMSA
announces updates via emails to pipeline operators and on the NPMS
website.
IV. Consequences of Hazardous Liquid Pipeline Spills in Coastal Areas
and the Great Lakes
Any release of petroleum, petroleum products, or other hazardous
liquids can adversely affect human health and safety, threaten wildlife
and habitats, impede commercial navigation, or damage personal or
commercial property. Spills into bodies of water present increased risk
because the water and water currents act as conveyances to increase the
spread of the spill. These factors greatly complicate response,
recovery, and remediation efforts for spills affecting bodies of water
and intertidal land along the shoreline. Major oil spills within the
Great Lakes, shorelines, or coastal waters would have extreme,
negative, and persistent impacts on shoreline ecology, benthic
communities at the base of the ecosystem, fisheries, human health, and
the economy of coastal communities. This IFR takes immediate action
necessary to ensure that operators take appropriate steps to protect
the Great Lakes, coastal communities, and marine waters from the
impacts of hazardous liquid spills into these fragile environments.
Although prediction of the precise number of avoided accidents realized
by this rulemaking's extension of IM requirements to currently
unregulated pipelines is challenging, the historical examples below
underscore the magnitude of adverse environmental consequences for
coastal beaches and coastal waters in the event of a significant
pipeline accident.
The most recent significant pipeline accident that affected coastal
beaches and coastal waters was a 2015 oil spill where a pipeline
operated by Plains Pipeline, LP (Plains) failed due to external
corrosion.\15\ While this rupture occurred in an HCA and therefore was
subject to PHMSA's IM requirements,\16\ it highlights many of the
probable impacts of oil pipeline spills into coastal areas. The rupture
released 2,934 barrels (approximately 123,000 gallons) of heavy crude
oil near Santa Barbara, California. Approximately 500 barrels (21,000
gallons) of crude oil reached the Pacific Ocean near Refugio State
Beach. On March 13, 2020, the U.S. Department of Justice (DOJ)
announced a settlement that required Plains pay over $60 million in
penalties, clean-up costs, and natural resources assessment costs and
damages.\17\ This spill is estimated to have contaminated over 3,000
acres of shoreline, subtidal, and benthic habitats, and resulted in the
injury or death to hundreds of birds and marine mammals.\18\ In
addition to the severe ecological impacts, the spill itself and cleanup
activities significantly limited recreational and commercial use of the
oil contaminated coastal beaches and surrounding areas.
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\15\ PHMSA, ``Failure Investigation Report: Plains Pipeline, LP,
Line 901 Crude Oil Release, May 19, 2015--Santa Barbara County,
California'' (May 2016), https://www.phmsa.dot.gov/foia/plains-pipeline-lp-line-901-failure-investigation-report (last accessed
June 21, 2021).
\16\ PHMSA and others brought a civil suit against Plains
alleging, inter alia, that numerous violations of PHMSA's IM
requirements contributed to the accident. See United States of
America, et al. v. Plains All America Pipeline, L.P., Docket No.
2:20-cv-02415, Complaint at ]] 130-158 (C.D. Cal. Mar. 13, 2020).
Plains acceded to a consent decree resolving those violations. See
United States of America, et al. v. Plains All America Pipeline,
L.P., Docket No. 2:20-cv-02415, Consent Decree at ] 70 (C.D. Cal.
Mar. 13, 2020).
\17\ DOJ, ``U.S. Pipeline Company to Modify its National
Operations to Implement Safeguards Resulting from Oil Spill'' (Mar.
13, 2020), https://www.justice.gov/opa/pr/us-pipeline-company-modify-its-national-operations-implement-safeguards-resulting-oil-spill (last accessed April 2, 2021).
\18\ California Department of Fish and Wildlife et. al.,
``Refugio Beach Oil Spill: Draft Damage Assessment and Restoration
Plan/Environmental Assessment'' (April 22, 2020), https://wildlife.ca.gov/OSPR/NRDA/Refugio (last accessed June 21, 2021).
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Another accident demonstrating the significant adverse
environmental consequences of pipeline spills into bodies of water was
the rupture of Enbridge Line 6B, which occurred on July 26, 2010, near
the town of Marshall, Michigan. While this spill occurred on a segment
of pipe within an HCA \19\ and along an inland, freshwater river,
rather than along the coast, the adverse impacts resulting from this
spill are similar to what could occur if a spill occurred in connecting
waters of the Great Lakes estuaries, and other marine waters up to the
head of tidal influence, which are specifically addressed in this rule.
This accident occurred when a 30-inch pipeline ruptured, spilling
approximately 20,000 barrels of diluted bitumen into the Kalamazoo
River and surrounding wetlands. The release contaminated 40 miles of
the Kalamazoo River, and cleanup efforts were complicated by the
propensity for diluted bitumen and other heavy crude oils to sink. As a
result of the spill, the impacted segment of the river remained closed
for public, recreational use for nearly two years.\20\ Environmental
impacts continued in the years
[[Page 73178]]
following the spill, including decreases in fish abundance and variety
in downstream areas until at least 2013.\21\ Enbridge agreed to pay
over $1 billion in cleanup costs and $177 million in a settlement with
DOJ, including $61 million in penalties.\22\ Other events occurring on
pipelines in or that could affect HCAs, such as a 2018 anchor strike
that dented the submerged Enbridge Line 5 in the Straits of
Mackinac,\23\ and the October 2021 discovery of a large crude oil
release from a pipeline near Huntington Beach, CA,\24\ further
highlight the damage that can be done by a pipeline spill into the
Great Lakes or other coastal waters.
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\19\ Although this pipeline was subject to PHMSA's IM
requirements, the operator's non-compliance with those requirements
was a cause of the accident. While operator error is always
possible, PHMSA believes that the inclusion of these requirements in
this rulemaking will reduce the risk of future accidents. See PHMSA,
CPF No. 3-2012-5013, In the Matter of Enbridge Energy Limited
Partnership (Sept. 7, 2012), https://primis.phmsa.dot.gov/comm/reports/enforce/documents/320125013/320125013_Final%20Order_09072012.pdf.
\20\ Klug, Fritz, ``Kalamazoo River reopens to the public, 2
years after Enbridge oil spill in Michigan,'' Michigan Live (Jan.
20, 2019), https://www.mlive.com/news/kalamazoo/2012/06/see_what_sections_of_the_kalam.html.
\21\ U.S. Fish and Wildlife Service et al., ``Final Damage
Assessment and Restoration Plan/Environmental Assessment for the
July 25-26, 2010 Enbridge Line 6B Oil Discharges near Marshall, MI''
(Oct. 2015), https://www.fws.gov/midwest/es/ec/nrda/MichiganEnbridge/#nrdar.
\22\ DOJ, ``United States, Enbridge Reach $177 Million
Settlement After 2010 Oil Spills in Michigan and Illinois'' (July
20, 2016), https://www.justice.gov/opa/pr/united-states-enbridge-reach-177-million-settlement-after-2010-oil-spills-michigan-and
(last accessed July 26, 2021).
\23\ National Transportation Safety Board, MAB-19/12, ``Marine
Accident Brief, Anchor Contact of Articulated Tug and Barge Clyde S
VanEnkevort/Erie Trader with Underwater Cables and Pipelines'' (May
21, 2018), https://www.ntsb.gov/investigations/AccidentReports/Pages/MAB1912.aspx.
\24\ PHMSA, CPF No. 5-2021-054-CAO, Corrective Action Order
issued to Amplify Energy Corp. (Oct. 4, 2021), https://www.phmsa.dot.gov/news/phmsa-corrective-action-order-amplify-energy-corporation-beta-offshore.
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Non-pipeline spills in coastal areas have also resulted in
widespread environmental damage and economic impacts. In 1969, an
offshore oil production platform experienced a blowout off the coast of
Santa Barbara, California. That accident contaminated 35 miles of
California shoreline.\25\ That event was the largest marine oil spill
in U.S. history until the grounding of the crude oil tanker, Exxon
Valdez, in Prince William Sound, Alaska in 1989,\26\ and later the
blowout of the Deepwater Horizon drilling rig in the Gulf of Mexico in
2010.\27\ Each of these events led to widespread harm to marine and
coastal ecosystems, and economic harm to coastal resources such as
fisheries and recreational areas.
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\25\ Mai-Duc, Christine, ``The 1969 Santa Barbara Oil Spill That
Changed Oil and Gas Exploration Forever,'' Los Angeles Times (May
20, 2015), https://www.latimes.com/local/lanow/la-me-ln-santa-barbara-oil-spill-1969-20150520-htmlstory.html.
\26\ EPA, ``Exxon Valdez Spill Profile--U.S. EPA Emergency
Response,'' https://www.epa.gov/emergency-response/exxon-valdez-spill-profile (last accessed June 21, 2021).
\27\ EPA, ``Deepwater Horizon--BP Gulf of Mexico Oil Spill--U.S.
EPA Enforcement,'' https://www.epa.gov/enforcement/deepwater-horizon-bp-gulf-mexico-oil-spill (last accessed June 21, 2021).
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V. Legislative and Administrative History
A. PIPES Act of 2016
With the passage of the PIPES Act of 2016, Congress amended 49
U.S.C. 60109(b) to add ``locations . . . that have been identified as
part of the Great Lakes or have been identified as coastal beaches,
[or] marine coastal waters'' to the list of ``areas where a pipeline
rupture would likely cause permanent or long-term environmental
damage.'' Section 19 of the PIPES Act of 2016 ordered that PHMSA
``revise section 195.6(b) of Title 49, Code of Federal Regulations, to
explicitly state that the Great Lakes, coastal beaches, and marine
coastal waters are USA ecological resources for purposes of determining
whether a pipeline is located in a high consequence area.'' As
described above, these areas will therefore be defined as HCAs, and
operators of hazardous liquid pipelines that could affect such areas
will be required to implement IM programs for those segments.
Based on the 2016 mandate, PHMSA searched for ``locations that have
been identified as part of the Great Lakes or have been identified as
coastal beaches, [or] marine coastal waters.'' During this search,
described in section VI.B, PHMSA used the definition of the Great Lakes
from 33 U.S.C. 1268 and geospatial information from NOAA's U.S. State
Submerged Lands dataset and added the Great Lakes to the NPMS. PHMSA
was unable to locate any existing U.S. statutory or regulatory
provision(s) providing similarly helpful definitions of ``marine
coastal waters'' or ``coastal beaches.'' Due to uncertainty regarding
how to define ``locations . . . that have been identified as . . .
coastal beaches [or] marine coastal waters'' as described in the PIPES
Act of 2016, PHMSA held two public meetings, discussed below, and began
drafting an advance notice of proposed rulemaking to seek public input
on how to best define those terms in part 195 and provide GIS data
representing the location of those areas in the NPMS.
B. Public Meetings
PHMSA held public meetings on November 17, 2017, and June 12, 2019,
to discuss definitions for ``coastal beaches,'' ``marine coastal
waters,'' \28\ and ``the Great Lakes,'' and to identify GIS data
sources to map such features in the NPMS. Both were in-person meetings
in Washington, DC with options for remote participation. Materials
presented during these meetings are available at the web page for each
meeting.\29\ The 2017 meeting included discussions on how PHMSA
currently maps commercially navigable waterways in the Great Lakes.
Representatives from PHMSA, NatureServe, NOAA, the Pipeline Safety
Trust (PST), Phillips 66, Arcadis, and the Coastal and Marine Operators
Pipeline Industry Initiative (CAMO) gave presentations. The meeting
included discussions of potential data sources for shoreline types,
what should be classified as a ``coastal beach,'' and where to define
the landward and seaward extent of ``marine coastal waters.''
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\28\ As described in greater depth below, the PIPES Act of 2020
replaced the term ``marine coastal waters'' with ``certain coastal
waters.''
\29\ Materials from the November 2017 meeting can be found at
https://primis.phmsa.dot.gov/meetings/MtgHome.mtg?mtg=129; materials
from the June 2019 Meeting can be found at https://primis.phmsa.dot.gov/meetings/MtgHome.mtg?mtg=142. Those meeting
materials are also available in the docket for this rulemaking at
https://www.regulations.gov/docket?D=PHMSA-2017-0094.
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The 2019 meeting focused primarily on nine questions that PHMSA
provided to attendees prior to the meeting, which included proposed
definitions for ``locations that have been identified as part of the
Great Lakes, or have been identified as coastal beaches, [or] marine
coastal waters.'' Also discussed was the creation of new USA ecological
resource GIS data based on the proposed definitions. PHMSA developed
the proposed definitions and other questions for the 2019 public
meeting after reviewing comments from the 2017 public meeting, the data
pilot project,\30\ and PHMSA's internal research. Question 9A,
presented to the public meeting participants, included a discussion on
whether PHMSA should use the GIS data depicting the extent of the U.S.
State Submerged Lands dataset to map the Great Lakes and Question 9B
referenced the statutory definition of the Great Lakes found in 33
U.S.C. 1268. PHMSA ultimately determined that the U.S. State Submerged
Lands GIS data was the best mapping source to match the existing Great
Lakes definition and added these data to the NPMS. This change is
described in section VI.B. PHMSA, American Petroleum Institute
(including Plains All American Pipeline, L.P. and Freeman GIS, Inc.),
PST, and the Louisiana Department of Natural Resources each gave
presentations during the 2019 meeting.
[[Page 73179]]
PHMSA requested that attendees post their questions and concerns to the
docket for the meeting. Following the meeting, PHMSA worked to develop
regulatory definitions and data sets addressing the challenges
identified during the meeting and in public comments.
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\30\ After the 2017 public meeting, PHMSA conducted a data pilot
project to identify possible GIS data representing the definitions
from the PIPES Act of 2016. The output of these data analyses are
the suggested GIS data options and sample maps presented at the 2019
public meeting. These are available on the meeting page.
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C. PIPES Act of 2020
The PIPES Act of 2020 eliminated the uncertainty regarding the
undefined terms ``coastal beach'' and ``marine coastal waters,'' as
they appeared in the PIPES Act of 2016. Section 120 of the PIPES Act of
2020 amended Section 19 of the PIPES Act of 2016. Congress eliminated
the term ``marine coastal waters'' and replaced it with ``certain
coastal waters,'' which Congress defined as ``the territorial sea of
the United States; the Great Lakes and their connecting waters; and the
marine and estuarine waters of the United States up to the head of
tidal influence.'' Furthermore, Congress defined ``coastal beach'' as
``any land between the high- and low-water marks of certain coastal
waters.'' Congress directed PHMSA to incorporate those definitions
within its regulations not later than 90 days after the enactment. This
rule therefore incorporates the statutory definitions of ``certain
coastal waters'' and ``coastal beach'' into Sec. 195.6 verbatim.
Nevertheless, PHMSA invites comments on its plan to implement this
mandate in the NPMS, which is described in section VI.
VI. Summary of Amendments
A. Revisions to Sec. 195.6
Pursuant to the plain language of Section 19 of the PIPES Act of
the 2016, as amended by the PIPES Act of 2020, this IFR amends Sec.
195.6 to explicitly state that the Great Lakes, coastal beaches, and
certain coastal waters are USA ecological resources for the purposes of
determining whether a pipeline is in an HCA, as defined in Sec.
195.450. In the IFR, PHMSA has revised Sec. 195.6(c) to include the
terms ``coastal beach'' and ``certain coastal waters,'' employing the
statutorily mandated definitions in the PIPES Act of 2020. The
implementation of these definitions in the NPMS is described in
sections VI.B and VI.C below. This change also influences whether
certain onshore rural gathering lines are regulated under Sec. 195.11.
The requirements for certain onshore rural gathering lines within \1/4\
mile of a USA are described in section VI.D below.
``Certain coastal waters'' are defined in this rule as ``the
territorial sea of the United States; the Great Lakes and their
connecting waters; and the marine and estuarine waters of the United
States up to the head of tidal influence.'' This language mirrors the
definition provided in the PIPES Act of 2020. Pursuant to Presidential
Proclamation 5928,\31\ the territorial sea of the United States extends
12 nautical miles (approximately 13.8 miles) from the baseline of the
United States.\32\ Generally, the baseline is drawn at the line of Mean
Lower Low Water, or the lowest of the two low tides per day averaged
over an 18.6-year period, as determined by NOAA; however, a straight
baseline is allowed in some circumstances.\33\ In other words, the
territorial sea portion of ``certain coastal waters'' extends from
approximately the line of low tide to 12 nautical miles out to sea. The
``marine and estuarine waters of the United States up to the head of
tidal influence'' refers to waters inland of the landward limit of the
territorial sea up to the upstream limit of water affected by the
tide.\34\
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\31\ 54 FR 777 (Jan. 9, 1989).
\32\ Although Presidential Proclamation 5928 contemplated that
an earlier, 3 nautical mile boundary of the ``territorial sea of the
United States'' would continue to apply in some regulatory regimes
(e.g., in connection with the Clean Water Act (CWA, 33 U.S.C. 1251
et seq.)), PHMSA understands a 12 nautical mile boundary to be
appropriate here. As noted elsewhere in this IFR, NOAA--in its
literature and its GIS datasets--describes the ``territorial sea''
as being defined by a 12 nautical mile seaward boundary. Further,
NPMS data yields that PHMSA's oversight of hazardous liquid
pipelines under the pipeline safety regulations currently extends to
a number of offshore pipelines located between the 3 nautical mile
and the 12 nautical mile lines. Therefore, defining the seaward
extent of the ``territorial sea of the United States'' by reference
to a more limiting, 3 nautical mile boundary would not protect the
environmental resources Congress sought to protect when
incorporating that statutory language within the PIPES Act of 2020.
\33\ Westington and Slagel, NOAA, ``U.S. Maritime Zones and the
Determination of the National Baseline'' (2007), https://www.gc.noaa.gov/pdfs/Westington_Slagel_2007.pdf.
\34\ NOAA, ``Definition for `Head of Tide''' in ``NOAA Tides and
Currents Glossary'' https://tidesandcurrents.noaa.gov/glossary.html
(last accessed June 21, 2021).
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As discussed in section VI.B below, PHMSA was able to use the
existing expert agency definition and data to identify the Great Lakes;
PHMSA had already included the Great Lakes and connecting waters in the
NPMS consistent with the existing statutory definition in 33 U.S.C.
1268. The Great Lakes and connecting waters include Lake Ontario, Lake
Erie, Lake Huron (including Lake St. Clair), Lake Michigan, and Lake
Superior, and the connecting channels (Saint Mary's River, Saint Clair
River, Detroit River, Niagara River, and the Saint Lawrence River to
the Canadian border). This GIS dataset similarly relies on NOAA
shoreline data.
The term ``coastal beach'' is defined in the PIPES Act of 2020, and
therefore, defined in this IFR as ``any land between the high- and low-
water marks of certain coastal waters.'' While earlier public meetings
considered how the term ``coastal beach'' might apply to different
shoreline types, the term ``coastal beach'' as defined the PIPES Act of
2020 directed that ``coastal beach'' covers ``any land between the
high- and low-water marks of certain coastal waters,'' meaning
intertidal land adjoining coastal waters, regardless of geomorphologic
characteristics. Further, the Great Lakes are considered non-tidal.\35\
---------------------------------------------------------------------------
\35\ NOAA, ``Do the Great Lakes Have Tides?'' https://oceanservice.noaa.gov/facts/gltides.html (last accessed June 21,
2021).
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B. The Great Lakes in the NPMS
On October 21, 2019, PHMSA added the Great Lakes as a USA in the
NPMS based on the mandate in Section 19 of the PIPES Act of 2016.\36\
As described above, PHMSA defined the Great Lakes using an existing
statutory definition at 33 U.S.C. 1268. PHMSA then selected
corresponding geospatial information from the NOAA U.S. State Submerged
Lands dataset to map the Great Lakes in the NPMS as a USA ecological
resource based on that definition. PHMSA has not received any feedback
on this approach and has determined that this information is consistent
with the updated mandates in the PIPES Act of 2020, as it includes each
of the Great Lakes and the connecting waters. Nevertheless, PHMSA seeks
comments on the selection of this definition of the Great Lakes and the
mapping data used to represent the location of the Great Lakes.
---------------------------------------------------------------------------
\36\ PHMSA, Press Release, ``PHMSA ID's Great Lakes as an
Ecological Resource in NPMS'' (Oct. 21, 2019), https://www.phmsa.dot.gov/news/phmsa-ids-great-lakes-ecological-resource-npms.
---------------------------------------------------------------------------
C. Certain Coastal Waters and Coastal Beaches in the NPMS
As described above, PHMSA maintains GIS data of HCAs, including
USAs, as part of the NPMS. PHMSA intends to map both ``certain coastal
waters'' and ``coastal beaches'' as USAs in a single GIS dataset
available from the NPMS using a composite of the data sets described in
this section. The datasets prepared by the EPA and NOAA described here
are developed through the collection of tidal and environmental data.
These data, collected over years, establishes the location of ``coastal
beaches'' and
[[Page 73180]]
``certain coastal waters'' as those terms were defined by Congress.
``Coastal beaches,'' as defined in the PIPES Act of 2020, extend
from the high water mark to the low water mark, and the territorial sea
portion of certain coastal waters extend from approximately the low
water mars to the seaward extent of the U.S. territorial sea. Thus, the
areas occupied by ``certain coastal waters'' and ``coastal beaches''
are contiguous and may overlap. This means that ``coastal beaches'' and
the ``territorial sea of the United States'' GIS data to be mapped in
the NPMS will cover all areas from near the line of high water to the
seaward limit of the territorial sea of the United States. This entire
area must now be considered as an ecological USA--and by extension, an
HCA--for compliance with the IM requirements.
To provide GIS data representing the location of ``certain coastal
waters'' and ``coastal beaches,'' PHMSA intends to create a single GIS
dataset using a combination of data available from EPA and NOAA.
Specifically, PHMSA intends to use the EPA Clean Water Act data
prepared by NOAA, the EPA Estuary Data Mapper, and the NOAA Sea Level
Rise Mean Higher High Water Data to create a single ``coastal beach''
and ``certain coastal waters'' USA dataset in the NPMS. PHMSA believes
that aggregating these datasets from expert scientific Federal agencies
represents the best-available national data on the location of
``certain coastal waters'' (the territorial sea of the United States,
marine and estuarine waters of the United States up to the head of
tide, and the Great Lakes), and ``coastal beaches'' (land between the
high and low water marks). Each of these parent datasets are prepared
and published by the expert agencies within the Federal government and
are available to the public for download and review. The use of
publicly available data addresses concerns about the availability of
proprietary and security-sensitive information that were raised by the
Pipeline Safety Trust and others during public meetings. PHMSA invites
comments on the use of these datasets to satisfy the requirements of
the PIPES Act of 2020.
PHMSA will use a portion of the GIS data NOAA compiled for EPA in
compliance with the Clean Water Act (CWA) to represent the territorial
sea portion of its new GIS dataset. Like the definition in the PIPES
Act of 2020, the CWA refers to the territorial sea of the United States
and the Great Lakes. The NOAA CWA dataset represents GIS data for the
Great Lakes and connecting waters, as well as waters from the mean
high-water line to the 12 nautical mile line (i.e., the seaward extent
of the U.S. territorial sea per Presidential Proclamation No. 5928) and
the 3 nautical mile line used for certain Federal laws existing on or
before the issuance of Presidential Proclamation No. 5928, including
the CWA. The landward boundary in the CWA dataset is defined by the
NOAA Medium Resolution Shoreline Product \37\ for the contiguous U.S.,
and other Federal data \38\ for the shoreline in Alaska, Hawaii, and
Puerto Rico. For the purposes of identifying the location of ``certain
coastal waters,'' the seaward extent of the U.S. territorial sea is
mapped at the 12 nautical mile line depicted in the NOAA CWA dataset in
accordance with the meaning of that term in Presidential Proclamation
No. 5928 and international law. The NOAA Medium Resolution Shoreline
represents the line of mean high water.\39\ These data are compiled
from official NOAA nautical charts and represents the definitive map of
U.S. maritime boundaries (such as the seaward extent of the U.S.
territorial sea) under U.S. and international law.
---------------------------------------------------------------------------
\37\ NOAA, ``NOAA Medium Resolution Shoreline'' (Apr. 7, 2000),
https://shoreline.noaa.gov/data/datasheets/
medres.html#:~:text=Abstract%3A%20NOAA's%20medium%2Dresolution%20shor
eline,set%20created%20for%20general%20use.&text=The%20data%20set%20wa
s%20created,Ocean%20Resources%20Conservation%20and%20Assessment
(last accessed June 21, 2021).
\38\ For more information on these datasets, see the ``Lineage''
section of the metadata for this dataset https://www.fisheries.noaa.gov/inport/item/48856.
\39\ See NOAA, ``Definition of `Mean High Water' in Tides and
Currents Glossary'' https://tidesandcurrents.noaa.gov/glossary.html
(last accessed June 21, 2021).
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While the U.S. territorial sea under Presidential Proclamation No.
5928, as mapped by NOAA, definitively represents the U.S. territorial
sea and the Great Lakes, it does not identify the location of marine
and estuarine waters of the United States up to the head of tidal
influence. In order to accurately represent such waters, PHMSA intends
to include data from the EPA Estuary Data Mapper in the NPMS map of
certain coastal waters and coastal beaches. The Estuary Data Mapper
includes GIS polygon data for approximately 2,000 named estuaries of
the United States. For the purposes of this dataset, EPA defines an
estuary as:
A partially enclosed body of water along the coast where
freshwater from rivers and streams meet and mix with salt water from
the ocean. Estuaries and the lands surrounding them are places of
transition from land to sea, and although influenced by the tides,
they are protected from the full force of ocean waves, winds, and
storms by such landforms as barrier islands or peninsulas.
This definition explicitly references tidal influences. PHMSA
understands the Estuary Data Mapper data represents the most complete
national inventory of estuarine waters. These data are designed to
support environmental science and management efforts and the EPA
National Estuary Program.\40\ The Estuary Data Mapper is a relatively
new GIS product tool, and it is not entirely complete in Alaska,
Hawaii, and some areas of the Pacific Northwest. Nonetheless, during
the course of the development of this document, EPA has reported
ongoing progress in this area.
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\40\ EPA, ``Frequently Asked Questions about Estuary Data
Mapper'' https://www.epa.gov/hesc/frequent-questions-about-estuary-data-mapper-edm (last accessed June 21, 2021).
---------------------------------------------------------------------------
The term ``coastal beaches'' includes all land between the high and
low-water marks. The Medium Resolution Shoreline used in the EPA map of
the U.S. territorial sea represents a location between high and low-
water marks. As stated earlier, the Medium Resolution Shoreline
represents the mean high water of the shore. NOAA defines ``mean high
water'' as ``the average of all high-water heights observed over the
National Tidal Datum Epoch.'' \41\ In contrast, NOAA defines the
``high-water mark'' as ``[a] line or mark left upon tide flats, beach,
or along shore objects indicating the elevation of the intrusion of
high water. The mark may be a line of oil or scum on along shore
objects, or a more or less continuous deposit of fine shell or debris
on the fore shore or berm.'' \42\ Because this physical line changes
with each tidal shift, NOAA measures and records the ``higher high
water'' (HHW), which is the ``higher of the two high waters of a tidal
day where the tide is semidiurnal (occurring twice daily).'' The
average of the HHW values is the tidal datum (i.e., a fixed starting
point) known as the ``mean higher high water'' (MHHW).
---------------------------------------------------------------------------
\41\ NOAA, ``Tidal Datums'' https://tidesandcurrents.noaa.gov/datum_options.html (last accessed June 21, 2021).
\42\ NOAA, ``Definition of `High Water Mark' in ``Glossary of
the NOAA Shoreline website'' https://shoreline.noaa.gov/glossary.html (last accessed June 21, 2021).
---------------------------------------------------------------------------
As described above, the ``high-water mark'' changes daily because
it is influenced by meteorological, climate, and surf conditions. PHMSA
is not aware of any national data representative of the physical high-
water mark, which is dynamic and changes day to day. In the absence of
this information, PHMSA will use the MHHW GIS data product from NOAA's
Sea Level Rise Viewer to approximate
[[Page 73181]]
the location of the dynamic high-water mark. The NOAA Sea Level Rise
Viewer includes digital elevation models and the NOAA tidal datum of
mean higher high water. In certain locations and in certain
meteorological conditions, the MHHW could be lower than a high-water
mark. Nonetheless, the MHHW is the most accurate dataset that PHMSA is
aware of for identifying the high-water mark and marine and estuarine
waters up to the head of tidal influence. PHMSA acknowledges that MHHW
may not precisely align with the exact physical high-water mark
(indicated by fine debris or scum line) at any given time. In any
event, the IM requirements apply not only to segments of hazardous
liquid pipelines that cross an HCA but also to any pipeline segments
that ``could affect'' an HCA. In determining which segments ``could
affect'' an area, operators need to consider the terrain around the
pipeline and natural forces inherent in the area, including tidal
forces, meteorological conditions, and flood zones, when determining
which pipeline segments could affect an HCA (See section I.B. of
appendix C to part 195).
D. Requirements for Pipelines That Could Affect HCAs
As described in section II, changes to the definition of the term
``USA'' affect the hazardous liquid pipelines subject to IM
requirements. Operators of hazardous liquid pipelines that could affect
the Great Lakes, ``certain coastal waters,'' and ``coastal beaches''
must include those segments in an IM program. Based on a geospatial
analysis using data in the NPMS, PHMSA estimates that 2,905 additional
miles of hazardous liquid pipelines, primarily in states adjoining the
Gulf of Mexico, will be subject to liquid IM requirements due to this
IFR. This estimate reflects segments located within \1/4\ mile of any
of the newly defined USAs but are not located within \1/4\ mile of the
location of existing HCAs described in existing Sec. Sec. 195.6 and
195.450. Based on this analysis, PHMSA anticipates that most affected
operators have an existing IM program and will be able to extend that
plan to include the newly covered segments. This analysis is described
in the RIA for this IFR.
In addition, operators of onshore hazardous liquid pipelines
submerged more than 150 feet below the surface of water that could
affect an HCA must comply with enhanced requirements for submerged
pipelines in self-executing provisions described in Sec. 120(d) of the
PIPES Act of 2020, codified at 49 U.S.C. 60109(g). That section of the
pipeline safety laws (49 U.S.C. 60101 et seq.) requires that operators
perform annual in-line inspections, annual route surveys, and have (and
follow) procedures for assessing the potential impacts from third-party
damage from vessels and maritime equipment, including anchors and
anchor chains.
The presence of a USA also effects which onshore gathering lines
are subject to part 195 safety requirements as regulated rural
gathering lines. Section 195.2 defines a rural area as being outside
the limits of any incorporated or unincorporated city, town, village,
or any other designated residential or commercial area such as a
subdivision, a business or shopping center, or community development.
Currently, an onshore rural gathering line is subject to safety
requirements in Sec. 195.11 if the pipeline has a nominal diameter
from 6\5/8\ inches to 8\5/8\ inches, has a stress level greater than 20
percent of the specified minimum yield strength (or a pressure of 125
pounds per square inch gauge (psig) for non-steel pipe or if the stress
level is not known), and is located within \1/4\-mile of a USA.
Defining new USAs may result in additional pipelines being classified
as regulated rural gathering lines. However, PHMSA expects that the
effect of the IFR on the mileage of onshore regulated rural gathering
lines will be limited since rural gathering lines are not generally
located along the coasts near most of the new USAs established by the
IFR. Further, those rural gathering lines that are near the coasts may
already be subject to part 195 requirements (pursuant to Sec. 195.1)
if they are either located in a non-rural area, cross commercially
navigable waterways, or are located in the inlets of the Gulf of
Mexico.\43\ As discussed in the RIA, PHMSA estimates that 58.5 miles of
currently unregulated rural gathering lines will become regulated, and
that the resulting regulatory burden for those lines will be $63
thousand in the first year of analysis, and $15 thousand in years two
through ten. PHMSA welcomes comment on its assumptions regarding the
mileage and regulatory burden for currently unregulated gathering lines
that become regulated as a result of the IFR, as well as corresponding
safety benefits.
---------------------------------------------------------------------------
\43\ PHMSA also notes that gathering lines larger than 8\5/8\
inches are already subject to part 195 safety requirements.
---------------------------------------------------------------------------
Rural gathering lines between 6\5/8\ inches and 8\5/8\ inches in
diameter that become regulated rural gathering lines as a result of the
IFR become subject to the requirements listed in Sec. 195.11(b). An
operator of a regulated rural gathering line must comply with reporting
requirements in subpart B of part 195; establish a maximum operating
pressure of the pipeline in accordance with Sec. 195.406; install and
maintain line markers in accordance with Sec. 195.410; establish and
carry out a public education program in accordance with Sec. 195.440;
establish and carry out a damage prevention program in accordance with
Sec. 195.442; comply with corrosion control requirements in subpart H;
establish and carry out a program to identify internal corrosion in
accordance with Sec. 195.11(b)(10); and comply with operator
qualification program requirements in accordance with subpart G to part
195 and Sec. 195.505. A new or replaced regulated rural gathering line
must also comply with the initial design, installation, construction
inspection, and testing requirements in part 195, unless that pipeline
is being converted to service under Sec. 195.5. Pursuant to Sec.
195.11(c), an operator most comply with Sec. 195.11(b)(2)-(11) within
6 months from the date that a new USA has been identified, except for
the requirements for corrosion control, which are subject to the
compliance timelines in part 195, subpart H.
Finally, the part 195 requirements applicable to low-stress
pipelines located in rural areas depend on the pipeline's proximity to
a USA. Section 195.12 defines a low-stress rural pipeline as a line
located in a rural area and having a maximum operating pressure
corresponding to a stress level of 20 percent or less of the specified
minimum yield strength (or if the stress level is unknown, or for non-
steel pipelines, a pressure less than or equal to 125 psig). A rural
low-stress line that is located within \1/2\ mile of a USA (or
alternatively, that could affect an HCA as determined in Sec.
195.452(a)) is a Category 1 or Category 2 rural low-stress line that
must comply with all of the safety requirements in part 195. Other
rural low-stress pipelines not within \1/2\ mile of a USA are Category
3 lines that must comply with all the requirements of part 195 except
the IM program requirements in Sec. 195.452. Pursuant to Sec.
195.12(e), a Category 3 rural low-stress line or any other pipeline
that becomes a Category 1 or Category 2 rural low-stress line must
comply with the IM program requirements within 12 months following the
date the USA is identified (i.e., the effective date of this IFR). IM
program requirements are described in detail above.
Because the IFR expands the scope of USAs, some Category 3 rural
low-stress lines may become Categories 1 or 2 rural low stress lines
and, therefore, would be
[[Page 73182]]
subject to IM program requirements at Sec. 195.452(a). However,
similar to the discussion of onshore regulated rural gathering above
and as explained in the RIA, PHMSA understands relatively few rural
low-stress pipelines will be affected by the IFR. Newly impacted rural
low-stress lines located within \1/4\- mile of the new USAs are
included in the RIA mileage estimate. However, PHMSA did not perform a
separate analysis of rural-low stress lines located between \1/4\ mile
and \1/2\ mile of a newly designated USA. PHMSA expects the (current)
Category 3 pipeline mileage which could be so affected to be minimal
given that much of the rural low-stress lines near a coast would cross
navigable waters and therefore would already be subject to IM program
requirements under Sec. 195.1. However, in 2020, operators reported
only 3,100 miles of rural low-stress hazardous liquid lines total
across all reported categories. Similar to the discussion of regulated
rural gathering lines, much of the pipeline mileage near the new USAs
(which are mostly along the coasts) is already subject to IM program
requirements pursuant to the general applicability of part 195 to
pipelines crossing navigable waters or that are located in the inlets
of the Gulf of Mexico in Sec. 195.1(a). Further, operators of rural
low-stress liquid lines have the option to perform an HCA could-affect
analysis under Sec. 195.452(a) rather than use the \1/2\-mile
criteria.
VII. Effective Date and Comments
This IFR is effective without advance notice and public comment as
the amendments to the CFR in the IFR are not subject to agency
discretion. Section 19 of the PIPES Act of 2016, as amended by the
PIPES Act of 2020 states that the Secretary ``shall revise section
195.6 [. . .] to explicitly state that the Great Lakes, coastal beaches
and certain coastal waters are USA ecological resources.'' The PIPES
Act of 2020 further specifies statutory definitions for each of these
terms. Pursuant to the plain language of the mandates from the PIPES
Act of 2016 and the PIPES Act of 2020, the IFR adopts each of these
statutory definitions into Sec. 195.6 verbatim. While PHMSA has no
discretion regarding the amendments to Sec. 195.6 mandated by the Act,
this IFR invites comments on the national and publicly available GIS
datasets to represent these new Ecological USA definitions in the NPMS.
PHMSA will consider all relevant, substantive comments in this
area. PHMSA encourages interested parties to submit comments that: (1)
Identify the amendments being commented on and the appropriate section
numbers; (2) provide justification for their support or opposition to
the amendments, especially data on safety risks and cost burdens; and
(3) provide specific alternatives if appropriate.
VIII. Good Cause Exception
The Administrative Procedure Act (APA, 5 U.S.C. 551 et seq.)
permits an agency to issue a final rule without first publishing a
proposed rule for public comment when it demonstrates ``good cause''
that notice and comment is ``impracticable, unnecessary, or contrary to
the public interest.'' 5 U.S.C. 552 (b)(3)(B). This exception is
narrow, and PHMSA is proceeding with an IFR only in light of the
specific instructions from Congress in the PIPES Act of 2020 that
render comment both unnecessary and impracticable.
Prior notice and comment are unnecessary for this rulemaking
because Congress, in the PIPES Act of 2020, provided clear, defined
terms and required PHMSA to update its regulations to incorporate those
terms. Specifically, Congress clarified that ``certain coastal waters''
means the territorial sea of the United States, the Great Lakes, and
marine and estuarine waters up to the head of tidal influence. Congress
also clarified which areas must be designated as a ``coastal beach.''
These statutory definitions resolved uncertainties within language in
the PIPES Act of 2016 to expand the hazardous liquid pipelines subject
to IM requirements. Congress did not provide discretion for PHMSA to
adopt the regulatory amendments in this IFR, requiring PHMSA to
``revise Sec. 195.6(b) to explicitly state that the Great Lakes,
coastal beaches, and certain coastal waters are USA ecological
resources for purposes of determining whether a pipeline is in a high
consequence area.''
Notice and comment are also unnecessary because the definitions of
the terms that Congress required PHMSA to include in its regulations
are also further specifically defined by other expert Federal agencies,
as described in the paragraphs that follow.
``The territorial sea of the United States'' has a long-established
meaning based on Presidential Proclamation 5928, international law, and
NOAA data sets. Each of these authorities define and designate the
``territorial sea of the United States,'' as extending 12 nautical
miles (approximately 13.8 miles) from the ``baseline.'' NOAA is
responsible for delineating the ``baseline,'' based on its tidal datum
Mean Lower Low Water, or the lowest of the two low tides per day
averaged over an 18.6-year period.
Next, NOAA has defined the boundaries of ``marine waters of the
United States.'' While the term ``marine waters'' is not specifically
defined in the U.S. Code, NOAA has defined ``marine waters'' as those
waters subject to tidal influence. The seaward boundary of ``marine
waters'' would be the extent of ``the territorial seas of the United
States,'' as described above. The landward boundary of the ``marine
waters'' is designated by NOAA's polygon GIS data identifying the MHHW
values. These values are the averages of daily HHW recordings from NOAA
tide stations over a period of 18.6 years.
EPA defines the boundaries of ``estuarine waters of the United
States.'' The Clean Water Act authorizes EPA to define and map
estuarine resources pursuant to the National Estuary Program provided
for in the Clean Water Act (33 U.S.C. 1330). As described above, EPA
similarly defines estuaries as subject to tidal influence. The EPA has
also made estuary polygon data available in EPA's Estuary Data Mapper
(EDM) that maps approximately 2,000 named estuaries identified using
EPA's Environmental Monitoring and Assessment Program's National
Coastal Condition Assessment.
NOAA has also defined the terms used in Congress' definition for
``coastal beaches.'' The PIPES Act of 2020 defines the term ``coastal
beach'' to mean any land between the high- and low-water marks of
certain coastal waters. As discussed above, NOAA has defined and mapped
the MHHW, which is an authoritative tidal datum for approximating a
``high water mark.'' In contrast, the low water mark need not be
defined for the purposes of the PIPES Act of 2020 because everything
seaward of the high water mark is included in either the ``territorial
sea of the United States,'' or the ``marine and estuarine waters of the
United States up to the head of tidal influence''--terms which, as
explained above, have been defined and mapped by NOAA and EPA.
Given the above, PHMSA has determined that it lacks discretion to
alter or consider alteration of the long-standing definitions or
practical understandings of ``the territorial sea of the United
States,'' ``marine waters of the United States,'' ``estuarine waters of
the United States,'' and ``coastal beaches.'' Similarly, PHMSA lacks
discretion to alter or consider redesignation of the GIS polygons as
depicted in NOAA's Clean Water Act data, the EPA EDM, and the NOAA Sea
Level Rise MHHW Data. Changes to these definitions and designations
would be inaccurate, would cause
[[Page 73183]]
confusion, and would be an unnecessary waste of government resources.
Therefore, a traditional notice and comment rulemaking is unnecessary.
The Congressionally-specified regulatory language, along with an
aggressive Congressional deadline, also render traditional notice and
comment impracticable. In light of the earlier challenges PHMSA faced
in defining and mapping the undefined terms ``marine coastal waters''
and ``coastal beaches,'' Congress in the PIPES Act of 2020 intervened
in a pending PHMSA rulemaking (under the same RIN as this rulemaking)
to ensure PHMSA had the tools--clear, defined terms in place of the
ambiguous language in the PIPES Act of 2016--to resolve the bases for
PHMSA's protracted delay in responding to an earlier rulemaking
mandate. Congress also demanded PHMSA ``complete'' those regulatory
amendments within 90 days of enactment of the PIPES Act of 2020.
Congress' expectations regarding the need for prompt PHMSA action to
complete this rulemaking is understandable given the history of
hazardous liquid pipeline accidents that have affected or threatened
coastal waters and the Great Lakes and other sensitive ecosystems. The
negative environmental and human health impacts of hazardous liquid
releases such as the 2010 Marshall, MI and 2015 Plains accidents
persist for years, even despite best clean-up efforts. The 2018 anchor
strike on Enbridge Line 5 further underscored the urgency of updating
PHMSA's regulatory framework to address those risks. More recently,
members of Congress have also identified the October 2021 discovery of
a large crude oil release from a pipeline near Huntington Beach, CA, as
evidence of the need for prompt PHMSA action to complete this
rulemaking.\44\
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\44\ See Letter from Reps. Graves & Crawford to Acting PHMSA
Administrator Brown (Oct. 14, 2021), https://republicans-transportation.house.gov/news/documentsingle.aspx?DocumentID=405635.
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Further delay of this IFR's regulatory revisions to accommodate
notice and comment procedures would, therefore, frustrate an aggressive
Congressional timeline for prompt completion of the specific regulatory
amendments that Congress understood as being necessary to align PHMSA's
IM regulations with the grave public safety and environmental risks
posed by hazardous liquid lines. For those reasons, traditional notice
and comment procedures are impracticable.
IX. Regulatory Analyses and Notices
Legal Authority for This Rulemaking
This IFR is published under the authority of the Federal Pipeline
Safety Laws. Section 60102 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. The
Secretary has delegated this authority to the PHMSA Administrator under
49 CFR 1.97. Further, Section 19 of the PIPES Act of 2016, as amended
by the PIPES Act of 2020, requires the Secretary of Transportation to
revise Sec. 195.6 to explicitly state in Sec. 195.6 that the Great
Lakes, certain coastal waters, and coastal beaches are USAs for the
purpose of determining whether a hazardous liquid pipeline is in or
could affect an HCA.
Executive Order 12866 and DOT Policies and Procedures for Rulemaking
Executive Order 12866 (``Regulatory Planning and Review'') \45\
requires that agencies ``should assess all costs and benefits of
available regulatory alternatives, including the alternative of not
regulating.'' Agencies should consider quantifiable measures and
qualitative measures of costs and benefits that are difficult to
quantify. Further, Executive Order 12866 requires that ``agencies
should select those [regulatory] approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity), unless a
statute requires another regulatory approach.'' Similarly, DOT Order
2100.6A (``Rulemaking and Guidance Procedures'') requires that
regulations issued by PHMSA and other DOT Operating Administrations
should consider an assessment of the potential benefits, costs, and
other important impacts of the proposed action and should quantify (to
the extent practicable) the benefits, costs, and any significant
distributional impacts, including any environmental impacts. The
Federal pipeline safety laws at 49 U.S.C. 60102(b)(5) further authorize
only those safety requirements whose benefits (including safety and
environmental benefits) have been determined to justify their costs.
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\45\ 58 FR 51735 (Oct. 4, 1993).
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Executive Order 12866 and DOT Order 2100.6A require that PHMSA
submit ``significant regulatory actions'' to the Office of Management
and Budget (OMB) for review. This IFR has been determined to be
significant under section 3(f) of Executive Order 12866 and was
reviewed by OMB. It is also considered significant under DOT Order
2100.6A. The Office of Information and Regulatory Affairs (OIRA) has
not, however, designated this rule as a ``major rule'' as defined by
the Congressional Review Act (5 U.S.C. 801 et seq.).
PHMSA estimates that the IFR will result in unquantified public
safety and environmental benefits associated with preventing and
mitigating hazardous liquid pipeline accidents within or that could
affect coastal beaches, coastal waters, or the Great Lakes. PHMSA
estimates annualized costs of between $3.91 million per year (using a 3
percent discount rate) and $3.98 million per year (using a 7 percent
discount rate) due to costs associating with establishing or updating
IM programs and performing integrity assessments. The costs and
benefits of the IFR are described in further detail in the RIA, which
is available in the docket.
Executive Order 13132
PHMSA analyzed this IFR in accordance with Executive Order 13132
(``Federalism'').\46\ Executive Order 13132 requires agencies to assure
meaningful and timely input by State and local officials in the
development of regulatory policies that may have ``substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
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\46\ 64 FR 43255 (Aug. 10, 1999).
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This IFR does not have a substantial direct effect on State and
local governments, the relationship between the national government and
the States, or the distribution of power and responsibilities among the
various levels of government. This rulemaking action does not impose
substantial direct compliance costs on State and local governments.
While the IFR may operate to preempt some State requirements, it
does not impose any regulation that has substantial direct effects 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. The pipeline safety laws, specifically 49
U.S.C. 60104(c), prohibit State safety regulation of interstate
pipeline facilities. Although the pipeline safety laws allow States to
augment pipeline safety requirements
[[Page 73184]]
for intrastate pipeline facilities, States may not issue safety
requirements less stringent than those required by Federal law. A State
may also regulate an intrastate pipeline facility PHMSA does not
regulate.
In this instance, the preemptive effect of the IFR is limited to
the minimum level necessary to achieve the objectives of the Federal
pipeline safety law under which the IFR is promulgated. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
Environmental Justice
DOT Order 5610.2C and Executive Orders 12898 (``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations''),\47\ 13985 (``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government''),\48\ 13990
(``Protecting Public Health and the Environment and Restoring Science
To Tackle the Climate Crisis''),\49\ and 14008 (``Tackling the Climate
Crisis at Home and Abroad'') \50\ require DOT Operating Administrations
to achieve environmental justice as part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, of their programs, policies, and
activities on minority populations, low-income populations, and other
disadvantaged communities.
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\47\ 59 FR 7629 (Feb. 16, 1994).
\48\ 86 FR 7009 (Jan. 20, 2021).
\49\ 86 FR 7037 (Jan. 20, 2021).
\50\ 86 FR 7619 (Feb. 1, 2021).
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PHMSA has evaluated this IFR under DOT Order 5610.2C and the
Executive Orders listed above and has determined it will not cause
disproportionately high nor adverse human health and environmental
effects on minority populations, low-income populations, or other
underserved and disadvantaged communities. The IFR is facially neutral
and national in scope; it is neither directed toward a particular
population, region, or community, nor is it expected to adversely
impact any particular population, region, or community. Indeed, because
PHMSA expects the rulemaking will reduce the safety and environmental
risks associated with hazardous liquid pipelines generally, PHMSA
understands the regulatory amendments introduced by this IFR will, in
fact, reduce any disproportionate human health and environmental risks
for minority populations, low-income populations, or other underserved
and other disadvantaged communities in the vicinity of pipelines within
the scope of the IFR's amendments.
Executive Order 13175
PHMSA analyzed this IFR in accordance with the principles and
criteria in Executive Order 13175 (``Consultation and Coordination with
Indian Tribal Governments'') \51\ and DOT Order 5301.1 (``Department of
Transportation Programs, Polices, and Procedures Affecting American
Indians, Alaska Natives, and Tribes''). Executive Order 13175 requires
agencies to assure meaningful and timely input from tribal government
representatives in the development of rules that significantly or
uniquely affect tribal communities by imposing ``substantial direct
compliance costs'' or ``substantial direct effects'' on such
communities or the relationship and distribution of power between the
Federal government and tribes.
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\51\ 65 FR 67249 (Nov. 9, 2000).
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PHMSA assessed the impact of the IFR and determined that it will
not significantly or uniquely affect tribal communities or Indian
tribal governments. The rulemaking's regulatory amendments are facially
neutral and will have broad, national scope; PHMSA, therefore, does not
expect this rulemaking to significantly or uniquely affect tribal
communities, much less impose substantial compliance costs on Native
American Tribal governments or mandate Tribal action. And insofar as
PHMSA expects the rulemaking will improve safety and reduce
environmental risks associated with hazardous liquid pipelines, PHMSA
has concluded it will not entail disproportionately high adverse risks
for Tribal communities. The funding and consultation requirements of
Executive Order 13175 do not apply.
Regulatory Flexibility Act, Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to conduct a Regulatory Flexibility Analysis (RFA) for
any rule subject to notice-and-comment rulemaking under the APA unless
the agency head certifies that the rule will not have a significant
economic impact on a substantial number of small entities. This final
rule was developed in accordance with Executive Order 13272 (``Proper
Consideration of Small Entities in Agency Rulemaking'') \52\ to promote
compliance with the RFA and to ensure that the potential impacts of the
rulemaking on small entities has been properly considered.
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\52\ 67 FR 53461 (Aug. 16, 2002).
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As discussed above, PHMSA has determined that there is ``good
cause'' to forego prior notice and comment and amend the pipeline
safety regulations through this IFR. The Regulatory Flexibility Act,
therefore, does not require PHMSA to conduct an RFA. Nonetheless, PHMSA
conducted a screening analysis of the impact of the IFR on small
entities, which is included in a final RFA within the rulemaking
docket. As explained at greater length in that RFA, PHMSA has analyzed
NPMS data and determined that only a small share of hazardous liquid
pipeline mileage nationwide will be affected by the IFR--and the
operators of most of that mileage either (1) already have IM programs,
or (2) are not small entities. Further, the compliance costs incurred
by even the handful of small entities that would be affected will not
be ``significant'' under the Regulatory Flexibility Act. For these
reasons, PHMSA certifies that the IFR will not have a significant
economic impact on a substantial number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
establishes policies and procedures for controlling paperwork burdens
imposed by Federal agencies on the public. Pursuant to 44 U.S.C.
3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must provide interested
members of the public and affected agencies with an opportunity to
comment on information collection and recordkeeping requests. PHMSA
expects this IFR to impact the information collections described below.
PHMSA will submit an information collection revision request to OMB
for approval based on the requirements in this IFR. The following
information is provided for each affected 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 collection is estimated to be revised as follows:
1. Title: Hazardous Liquid Pipeline Assessment Requirements.
OMB Control Number: 2137-0605.
Current Expiration Date: 4/30/23.
Abstract: This information collection covers documentation and
notifications associated with hazardous liquid pipeline IM
requirements. These requirements include documentation of
[[Page 73185]]
continual assessment and evaluation and preventative and mitigative
measures. PHMSA estimates that the new USA definitions in the IFR will
require 6 operators to create new IM programs, resulting in 46,640
hours of additional burden to prepare an IM program and integrate
safety information in the first year and 1,860 hours of additional
burden each subsequent year. This results in an average annual burden
increase of 16,787 hours per year over 3 years. PHMSA estimates that
the remaining 105 affected operators are already subject to IM
requirements, and therefore already have an IM program and perform
annual updates.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 10,509.
Total Annual Burden Hours: 342,394 hours.
Frequency of Collection: Regular.
2. Title: Qualification of Pipeline Safety Training.
OMB Control Number: 2137-0600.
Current Expiration Date: 11/30/2024.
Abstract: This information collection covers requirements to make
and maintain training and qualification records of pipeline operating
personnel. For hazardous liquid pipeline operators, these requirements
are described in subpart G of part 195. These records include
identification of individuals qualified to perform covered tasks, the
covered tasks they are qualified to perform, and the method and date
they were qualified. These records must be maintained while the
individual is performing qualified tasks, or 5 years after the
individual is no longer performing covered tasks. PHMSA estimates that
the new USA definitions in the IFR will require operators of rural
gathering lines regulated under Sec. 195.11 to keep records of
qualification for 30 additional individuals. This results in an average
annual burden increase of 5 responses and 1 hour per year over 3 years.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 29,172.
Total Annual Burden Hours: 2,293 hours.
Frequency of Collection: Regular.
3. Title: Transportation of Hazardous Liquids by Pipeline:
Recordkeeping and Accident Reporting.
OMB Control Number: 2137-0047.
Current Expiration Date: 3/31/2024.
Abstract: This information collection covers hazardous liquid
pipeline accident report requirements in Sec. 195.50 and general
recordkeeping burden associated with complying with Federal hazardous
liquid pipeline safety regulations in part 195. PHMSA estimates that
the new USA definitions in the IFR will require 2 operators of rural
gathering pipelines that become regulated under part 195.11 to
establish recordkeeping programs to comply with part 195 requirements
applicable to regulated rural gathering pipelines. This results in an
average annual burden increase of 2 responses and 272 hours per year
over 3 years. PHMSA estimates that 4 additional operators of affected
rural gathering liens already have part 195 recordkeeping programs
associated with regulated assets that they operate. The reporting
burden associated with accident reports is unchanged.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 743.
Total Annual Burden Hours: 45,919 hours.
Frequency of Collection: Regular and on occasion.
4. Title: Public Awareness Program.
OMB Control Number: 2137-0622.
Current Expiration Date: 11/30/2024.
Abstract: This information collection covers records and reports
generated in order to demonstrate compliance with public awareness
program requirements. Hazardous liquid pipeline operators must comply
with the public awareness program requirements in Sec. 195.440.
Program documentation and program evaluation results must be retained
and be made available to Federal and State pipeline safety regulatory
agencies. PHMSA estimates that the new USA definitions in the IFR will
require 2 operators of rural gathering pipelines that become regulated
under part 195.11 to establish recordkeeping programs to comply with
public awareness program requirements. PHMSA estimates an average
annual burden increase of 4 responses and 92 hours per year over 3
years associated with annual program development and program evaluation
and update requirements. PHMSA estimates that 4 additional operators of
affected rural gathering lines already have public awareness
recordkeeping programs associated with regulated assets that they
operate.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 45,004.
Total Annual Burden Hours: 517,592 hours.
Frequency of Collection: Regular.
Those desiring to comment on these information collections should
send comments directly to the Office of Management and Budget, Office
of Information and Regulatory Affairs. Comments should be submitted on
or prior to February 25, 2022 via email at the following address:
[email protected].
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of Federal regulatory actions
on State, local, and Tribal governments, and the private sector. For
any NPRM or final rule that includes a Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate of $100 million or more (in 1996 dollars) in any given year,
the agency must prepare, amongst other things, a written statement that
qualitatively and quantitatively assesses the costs and benefits of the
Federal mandate. As explained further in the RIA, PHMSA has determined
that the IFR does not impose enforceable duties on State, local, or
Tribal governments or on the private sector of $100 million or more (in
1996 dollars) in any one year. A copy of the RIA is available for
review in the docket of this rulemaking.
Privacy Act Statement
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 www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
National Environmental Policy Act
The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et.
seq.) requires Federal agencies to prepare a detailed statement on
major Federal actions significantly affecting the quality of the human
environment. The Council on Environmental Quality implementing
regulations (40 CFR parts 1500-1508) require Federal agencies to
conduct an environmental review considering (1) the need for the
action, (2) alternatives to the action, (3) probable environmental
impacts of the action and alternatives, and (4) the agencies and
persons consulted during the consideration process. DOT Order 5610.1C
(``Procedures for Considering Environmental Impacts'') establishes
departmental procedures for evaluation
[[Page 73186]]
of environmental impacts under NEPA and its implementing regulations.
PHMSA analyzed this IFR in accordance with NEPA, NEPA implementing
regulations, and DOT Order 5610.1C. PHMSA has prepared an environmental
assessment (EA) and determined this action will not significantly
affect the quality of the human environment. To the extent that the IFR
has impacts on the environment, these are primarily beneficial
ecological impacts from reducing the likelihood and consequences of
hazardous liquid spills in coastal areas and the Great Lakes. A copy of
the EA for this action is available in the docket. PHMSA invites
comment on the environmental impacts of this IFR.
Executive Order 13211
Executive Order 13211 (``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'') \53\
requires Federal agencies to prepare a Statement of Energy Effects for
any ``significant energy action.'' That Executive Order defines a
``significant energy action'' as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation (including a
notice of inquiry, ANPRM, and NPRM) that (1)(i) is a significant
regulatory action under Executive Order 12866 or any successor order
and (ii) is likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (2) is designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action.
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\53\ 66 FR 28355 (May 22, 2001).
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This IFR is a significant action under Executive Order 12866;
however, it is expected to have an annual effect on the economy of less
than $100 million. Further, this IFR is not likely to have a
significant adverse effect on supply, distribution, or energy use, as
further discussed in the RIA. Further, OIRA has not designated this IFR
as a significant energy action.
Executive Order 13609 and International Trade Analysis
Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \54\ requires agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
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\54\ 77 FR 26413 (May 4, 2012).
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Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
to protect the safety of the American public. PHMSA has assessed the
effects of the IFR and determined that it will not cause unnecessary
obstacles to foreign trade.
List of Subjects in 49 CFR Part 195
Pipeline safety, Pipelines, Oil pollution.
In consideration of the foregoing, PHMSA is amending 49 CFR part
195 as follows:
PART 195--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE
0
1. The authority citation for part 195 continues to read as follows:
Authority: 30 U.S.C. 185(w)(3), 49 U.S.C. 5121, 60101 et seq.,
and 49 CFR 1.97.
0
2. Amend Sec. 195.6 as follows:
0
a. In paragraph (b)(4), remove the word ``or'' at the end;
0
b. In paragraph (b)(5), remove the period at the end and add in its
place ``; or'';
0
c. Add paragraphs (b)(6) and (7);
0
d. Revise paragraph (c) introductory text; and
0
e. In paragraph (c) add definitions for the terms ``certain coastal
waters'' and ``coastal beach'' in alphabetical order.
The additions and revision read as follows:
Sec. 195.6 Unusually Sensitive Areas.
* * * * *
(b) * * *
(6) A coastal beach; or
(7) Certain coastal waters.
(c) Definitions used in this part--
* * * * *
Certain coastal waters means the territorial sea of the United
States; the Great Lakes and their connecting waters; and the marine and
estuarine waters of the United States up to the head of tidal
influence.
* * * * *
Coastal beach means any land between the high- and low-water marks
of certain coastal waters.
* * * * *
Issued in Washington, DC, on December 16, 2021, under authority
delegated in 49 CFR 1.97.
Tristan H. Brown,
Deputy Administrator.
[FR Doc. 2021-27751 Filed 12-23-21; 8:45 am]
BILLING CODE 4910-60-P