Pipeline Safety: Regulatory Reform for Hazardous Liquid Pipelines, 21140-21159 [2020-05721]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 85, Number 74 (Thursday, April 16, 2020)]
[Proposed Rules]
[Pages 21140-21159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05721]



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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 190, 194, and 195

[Docket No. PHMSA-2018-0047]
RIN 2137-AF37


Pipeline Safety: Regulatory Reform for Hazardous Liquid Pipelines

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: PHMSA is soliciting public comment on proposed amendments to 
the Federal Pipeline Safety Regulations for the safety of hazardous 
liquid pipelines that would revise the requirements for facility 
response plans, revise the definition for accidents, and consider 
repealing, replacing, or modifying other specific regulations. The 
intent of these changes is to reduce regulatory burdens and improve 
regulatory clarity without compromising safety and environmental 
protection.

DATES: Comments on this notice are due by June 15, 2020.

ADDRESSES: Submit comments, identified by Docket No. PHMSA-2018-0047, 
using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: U.S. DOT Docket Management System, West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 
20590-0001.
     Hand-deliver/courier: Available between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this proposed rule. If you submit your comments by 
mail, submit two copies. If you wish to receive confirmation that PHMSA 
has received your comments by mail, include a self-addressed stamped 
postcard.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to https://www.regulations.gov, as described in 
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed 
at https://www.transportation.gov/privacy.
    Confidential business Information: Confidential Business 
Information (CBI) is commercial or financial information that is both 
customarily and actually treated as private by its owner. Under the 
Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from 
public disclosure. If your comments responsive to this notice contain 
commercial or financial information that is customarily treated as 
private, that you actually treat as private, and that is relevant or 
responsive to this notice, it is important that you clearly designate 
the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask 
PHMSA to give confidential treatment to information you give to the 
agency by taking the following steps: (1) Mark each page of the 
original document submission containing CBI as ``Confidential''; (2) 
send PHMSA, along with the original document, a second copy of the 
original document with the CBI deleted; and (3) explain why the 
information you are submitting is CBI. Unless you are notified 
otherwise, PHMSA will treat such marked submissions as confidential 
under the FOIA, and they will not be placed in the public docket of 
this notice of proposed rulemaking (NPRM). Submissions containing CBI 
should be sent to Sayler Palabrica at [email protected] or 1200 
New Jersey Ave SE, E24-447, Washington, DC 20590. Any commentary that 
PHMSA receives which is not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: For technical information, contact 
Chris Hoidal, Senior Technical Advisor, by telephone at 303-807-8833 or 
by email at [email protected].
    For general information, contact Sayler Palabrica, Transportation 
Specialist, by telephone at 202-366-0559 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background
III. Request for Input
IV. Proposed Amendments
V. Availability of Standards Incorporated by Reference
VI. Regulatory Analyses and Notices

I. EXECUTIVE SUMMARY

A. Purpose of This Rulemaking Action

    PHMSA is proposing to amend the Federal Pipeline Safety Regulations 
at 49 CFR parts 190, 194, and 195 to reduce the regulatory burden on 
pipeline systems transporting hazardous liquids. The proposed 
amendments in this rulemaking include regulatory relief actions 
identified by internal agency review, petitions for rulemaking, and 
public comments on DOT's regulatory reform and infrastructure 
notifications titled, ``Transportation Infrastructure: Notice of Review 
of Policy, Guidance, and Regulation'' (82 FR 26734; June 8, 2017), and 
``Notification of Regulatory Review'' (82 FR 45750; Oct. 2, 2017). 
PHMSA is requesting comment on the proposed amendments.

B. Summary of the Proposed Amendments

    PHMSA is proposing to repeal, replace, or revise sections in parts 
190, 194, and 195 to reduce regulatory burdens. Part 190 specifies 
procedures during inspections and investigations, part 194 contains the 
requirements for preparing and submitting oil spill response plans, and 
part 195 prescribes the safety and reporting requirements for pipelines 
transporting hazardous liquids or carbon dioxide. In part 190, PHMSA is 
proposing to clarify the requirements for producing records during an 
inspection or investigation and reduce the burden required to submit 
confidential commercial information under most circumstances. In part 
194, PHMSA is proposing amendments that would streamline the oil spill 
response plan requirements and clarify or eliminate requirements that 
may be confusing or redundant. In part 195, PHMSA is proposing 
amendments that would relieve accident reporting burdens, allow remote 
monitoring of rectifier stations, and clarify integrity management (IM) 
guidance.

C. Costs and Benefits

    PHMSA projects that, if promulgated, the amendments in this 
proposed rule would result in estimated annualized net cost savings of 
$273,242 for regulated entities based on a 7 percent discount rate. 
PHMSA has determined that the proposed changes would not increase risks 
to public safety or the environment.
    In accordance with 49 U.S.C. 60102, Executive Order (E.O.) 12866, 
and DOT policy, PHMSA has prepared an initial assessment of the costs 
and benefits of these proposed changes as well as reasonable 
alternatives. PHMSA has released the preliminary regulatory impact 
analysis (RIA) concurrent with this NPRM for public review and comment, 
and it is available in the docket.

II. Background

    In response to E.O. 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' E.O. 13783, ``Promoting Energy Independence and 
Economic Growth,''

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and E.O. 13777, ``Enforcing the Regulatory Reform Agenda,'' DOT issued 
two notices soliciting regulatory reform ideas from the public. The 
first notification (82 FR 26734; June 8, 2017) requested public comment 
on existing regulations that may be obstacles to transportation 
infrastructure projects. DOT received more than 200 comments in the 
transportation infrastructure docket, including six comments that are 
relevant to the Federal Pipeline Safety Regulations.\1\ The second 
notification (82 FR 45750; Oct. 2, 2017) requested comment on existing 
rules and other agency actions that may be eligible for repeal, 
replacement, suspension, or modification without compromising safety. 
DOT asked the public to identify agency actions that eliminate jobs or 
inhibit job creation; are outdated, unnecessary, or ineffective; impose 
costs that exceed benefits; create a serious inconsistency or otherwise 
interfere with regulatory reform initiatives and policies; could be 
revised to use performance standards in lieu of design standards; or 
potentially unnecessarily encumber energy production. After a 30-day 
comment period, DOT re-opened the comment period until December 1, 2017 
(82 FR 51178; Nov. 3, 2017). Of the nearly 3,000 public comments 
received, approximately 30 were related to the Federal Pipeline Safety 
Regulations.\2\
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    \1\ Docket No. DOT-OST-2017-0057.
    \2\ Docket No. DOT-OST-2017-0069.
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    To support DOT's regulatory reform efforts, PHMSA's Office of 
Pipeline Safety (OPS) reviewed, considered, and identified existing 
regulations that could be improved, revised, repealed, or streamlined. 
OPS also considered the public comments submitted in response to DOT's 
June 8, 2017 notice soliciting comments about transportation 
infrastructure, DOT's October 2, 2017 public notice soliciting comments 
on regulatory reform, and petitions for rulemakings. These amendments 
to PHMSA regulations are being proposed based on the input received in 
response to those notifications.

III. Request for Input

    PHMSA is seeking public comments on the regulatory reform actions 
proposed in this NPRM. PHMSA will consider all relevant and substantive 
comments but encourages interested parties to submit comments that: (1) 
Identify the proposed amendments being commented on and the appropriate 
section numbers; (2) provide justification for their support or 
opposition to the proposed amendments, especially data on safety risks 
and cost burdens; and (3) provide specific alternatives if appropriate.

IV. Proposed Amendments

A. Part 190 Pipeline Safety Enforcement and Regulatory Procedures

    The Pipeline Safety Laws (49 U.S.C. 60101 et seq.) require pipeline 
operators to maintain records, make reports, and provide certain 
information to PHMSA upon request. PHMSA is proposing to amend its 
regulations under part 190 to clarify the requirements for producing 
records during an agency inspection or investigation in a way that 
recognizes technological innovation. The proposed changes would clarify 
that new technology is permitted while ensuring that PHMSA can 
effectively enforce the Federal Pipeline Safety Regulations.
Section 190.203 Inspections and investigations
    The Pipeline Safety Laws require operators to make records, reports 
and information available to PHMSA upon request and provide the 
information that is required in order to decide whether or not an 
operator is in compliance.\3\ PHMSA is proposing to clarify that 
operators may submit records electronically, provided that the method 
used to submit information allows PHMSA to download and print non-
redacted copies of records in their original format (the file format 
used by the application that created the electronic document) and does 
not impose limitations that impede PHMSA's ability to enforce the 
Pipeline Safety Laws. PHMSA recognizes that record production 
technology will continue to evolve and intends to define document 
production standards in this proposed rule in a way does not create a 
barrier to innovation in record production technology. Thus, PHMSA's 
proposed change would set consistent minimum standards for providing 
records to PHMSA and give operators the choice to select the best 
method to deliver the information that PHMSA needs to enforce the 
Pipeline Safety Laws. This change does not have direct safety effects 
but will improve the efficiency of inspections and investigations.
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    \3\ 49 U.S.C. 60117(b).
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    PHMSA encourages the use of technology that makes sending and 
receiving records more convenient; however, that goal is undermined by 
a lack of clear expectations for the quality and usability of 
information submitted to the agency. This lack of clear expectations 
leads to unnecessary delays and burdens on both operators and 
inspectors when PHMSA requests operators manually re-submit records 
that were provided in an unusable format.
    Historically, pipeline operators provided PHMSA with paper copies 
of records during the agency's routine inspections and accident 
investigations. As technology has evolved, operators have provided 
electronic and hard copies of company records to PHMSA. Recently, some 
operators have requested that PHMSA access and review documents related 
to incidents or investigations through an operator-controlled 
electronic record delivery system (often referred to as a ``portal'').
    PHMSA recognizes that electronic systems present an opportunity to 
deliver operator records to PHMSA in a cost-effective manner. However, 
some electronic systems alter the usability of documents in a way that 
limits PHMSA's ability to carry out its statutory responsibilities 
under the Pipeline Safety Laws. For example, some portals are ``view 
only'' and do not allow PHMSA the ability to download, print, or search 
important operator records; many of these documents must be analyzed 
and compared with other documents, and cannot be adequately reviewed by 
viewing on a computer screen one page at a time. Other features that 
have impeded PHMSA's review of documents include automatic 
watermarking, intrusive monitoring systems, and systems that convert 
documents to un-searchable PDFs.
    In order to maintain consistency between operator-submitted paper 
and electronic records, PHMSA proposes to place certain minimum 
standards on the capabilities of an operator's record production and 
delivery systems. Specifically, PHMSA proposes to require that, for any 
records that an operator chooses to submit to PHMSA using an electronic 
record delivery system or similar technology, the electronic record 
delivery system or technology must: (1) Allow PHMSA to download and 
print all records on the portal from any U.S.-based internet access 
point without redacting or altering the document (e.g., watermarking, 
date and time-stamping with username/access date information); (2) not 
remove or restrict document functionality that is available to the 
operator for each document, meaning that if the original format of a 
document allows for the ability to magnify a document while maintaining 
legibility; search a record for text; or search for specific records by 
name, date, or file type, then those same capabilities must be 
available to PHMSA personnel; and (3) provide PHMSA with a point of

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contact who is responsible for addressing reported problems with the 
system or any record displayed on the system. If the point of contact 
is not a site administrator, then PHMSA would expect the point of 
contact to have direct access to a site administrator responsible for 
fixing problems as expeditiously as possible.
    For any electronic record delivery system that PHMSA accesses for 
the purposes of enforcing the Pipeline Safety Laws, operators must: (1) 
Disable the use of activation codes that must be entered to begin any 
individual session; (2) disable any unnecessary internet connectivity 
requirements to view downloaded documents; (3) disable any document 
tracking features; (4) ensure that any ``time-out'' feature be set to a 
reasonable amount of time, but no shorter than one hour; and (5) not 
impose any pre-access conditions (e.g., through log-in agreements or 
notifications) that hinder PHMSA's ability to use records displayed on 
the portal. If PHMSA determines that an operator's electronic record 
delivery system would impede or otherwise prevent PHMSA's efficient 
review of records in an inspection or investigation, or if the system 
is otherwise in conflict with PHMSA regulations, PHMSA may order an 
operator to deliver records via an alternative method or in an 
alternative format.
    The proposed rule gives operators the choice to select the best 
method to deliver information to PHMSA and does not require operators 
to modify records to meet these requirements. PHMSA proposes to require 
operators submit electronic records in their original format unless 
PHMSA allows an alternative format. Operators must not alter documents 
in a way that impedes PHMSA's ability to effectively or efficiently 
review the documents. For example, if a particular report is in PDF 
format, PHMSA would not expect an operator to convert it to a word 
document before submitting it to PHMSA through an electronic system. On 
the other hand, an electronic system that converts all submitted 
documents, including searchable spreadsheets or word processor 
documents, to PDF form would not be acceptable.
    Clear requirements for electronic record delivery systems will 
reduce delays for both operators and PHMSA. The Pipeline Safety Laws 
require operators to make records, reports, and information available 
upon request in order to assist PHMSA's determination regarding whether 
an operator is in compliance with the Pipeline Safety Laws (49 U.S.C. 
60117(b)). The proposed rule ensures that operators do not spend time 
creating systems that are unusable by PHMSA and allows the agency to 
efficiently access and use electronic records.
Section 190.343 Information made available to the public and request 
for protection of confidential commercial information
    Section 190.343 establishes the procedures for operators to request 
confidential treatment of commercial information they submit to PHMSA, 
including a requirement for operators to provide PHMSA with a redacted 
copy of the records being submitted and an explanation as to why the 
information is confidential commercial information. PHMSA is proposing 
to revise these requirements to reduce the burden associated with 
redacting documents containing confidential information. This change 
has no direct safety effects but may improve the efficiency of 
inspections and investigations.
    In response to DOT's notification of regulatory reform (82 FR 
45750; Oct. 2, 2017), the American Petroleum Institute (API) and the 
Association of Oil Pipelines (AOPL) expressed concerns about the need 
to provide a copy of redacted records under Sec.  190.343(a), 
especially records that are requested during inspections and 
investigations. API and AOPL stated, ``the process of redacting 
information from voluminous documents is very burdensome and costly, 
and if a Freedom of Information Act (FOIA) request is not made for the 
documents, then dedicating significant resources to such an effort is 
unwarranted.'' Pipeline operators have expressed similar concerns to 
PHMSA staff.
    PHMSA understands this concern and also has observed that redaction 
requirements can lead to delays during investigations. For these 
reasons, PHMSA proposes to provide operators the option, but not the 
obligation, to submit a redacted copy of records containing 
confidential commercial information submitted for purposes other than 
rulemaking or special permit proceedings, such as in response to a 
PHMSA inspection or investigation. PHMSA proposes to continue to 
require operators to submit a redacted copy of records submitted in 
rulemaking proceedings and in applications for special permits and 
renewals, since those documents must be placed in a public docket. The 
proposed revision results in cost savings in situations in which it may 
be burdensome and costly for operators to redact records prior to 
submission. In other situations, operators may prefer to provide PHMSA 
with a second copy that has confidential commercial information 
redacted.
    In addition to the changes to redaction requirements, PHMSA also 
proposes to clarify what is required to assert that information is 
confidential commercial information. Simply marking records 
``confidential'' under a general claim of confidentiality is not 
sufficient for the purposes of claiming confidential commercial 
information. PHMSA proposes to require operators provide a specific 
explanation of why the information is confidential commercial 
information. The proposed rule also clarifies Sec.  190.343 by 
eliminating superfluous language in paragraph (b) that indicates under 
what conditions PHMSA will treat information as confidential.

B. Part 194 Response Plans for Onshore Oil Pipelines

    PHMSA promulgated part 194 in response to the mandates in the Oil 
Pollution Act of 1990 (OPA 90).\4\ OPA 90 requires any operator of a 
ship or facility, including pipeline facilities, that could cause 
substantial environmental harm by discharging oil into or on the 
navigable waters or adjoining shorelines of the United States, to 
prepare and submit a facility response plan (FRP) for a worst-case oil 
discharge. Part 194 requires operators of onshore oil pipeline 
facilities to prepare an FRP and establishes the minimum requirements 
for what the operators must include in their FRPs. In all FRPs, the 
operator must describe a ``worst-case'' scenario as well as the 
appropriate response to that discharge, including details regarding the 
equipment and personnel that will be made available during the 
specified timeframe following the discharge to appropriately contain 
and clean up the spill. Part 194 also requires operators to run drills 
and exercises based on their FRPs to prepare for an acutal release.
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    \4\ The Oil Pollution Act of 1990 (OPA 90) (33 U.S.C. 1321) 
amended the Federal Water Pollution Control Act (FWPCA).
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    PHMSA is proposing several changes to part 194 to streamline how 
operators of onshore oil pipelines must plan, prepare, and submit FRPs 
as required by OPA 90. The proposed changes are intended to improve the 
clarity of the requirements and applicability of part 194, codify 
current policy, ensure consistency with other federal requirements and 
terminology, and reduce regulatory burdens without compromising safety. 
Notably, this NPRM would clarify the applicability of part 194 by 
removing a list of exemptions that are incorrectly defined

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as ``exceptions'' in Sec.  194.101. Section 194.101(b)(1) lists 
``exceptions'' to the requirements of part 194. However, these 
``exceptions'' are not applicable if the pipeline facility could cause 
``substantial'' or ``significant and substantial harm'' to navigable 
waters or adjoining shorelines. Since part 194 only applies to pipeline 
facilities that could affect navigable waterways or adjoining 
shorelines, these are not true exceptions. Partially removing the 
``exceptions'' as currently written would clarify the applicability of 
part 194 in a manner consistent with OPA 90.
    PHMSA is proposing to move the ``exception'' currently listed in 
Sec.  194.101(b)(2)(ii) to Sec.  194.3(b). This exemption applies to 
pipelines 6\5/8\ inches or less in diameter, ten miles or less in 
length, and where the operator determines that it is unlikely that the 
worst-case discharge (WCD) from any point on the line section would 
adversely affect, within 4 hours after the initiation of the discharge, 
any navigable waters, public drinking water intake, or environmentally 
sensitive areas. Due to the lower risk presented by these low-capacity 
pipelines that are removed from protected resources, PHMSA wishes to 
explicitly recognize the possibility that these pipelines may not 
require a plan.
    Additionally, PHMSA is proposing to remove the terms ``substantial 
harm'' and ``significant and substantial harm'' from the regulations 
and remove Sec.  194.103 in its entirety. Currently, part 194 requires 
an operator to make a distinction between the types of potential harm 
an oil spill could cause, include a statement in its FRP if certain 
conditions are met, and submit a plan accordingly. OPA 90 requires 
submission of plans for facilities that could cause ``substantial 
harm'' or ``significant and substantial harm,'' but does not expressly 
require approval of plans for ``substantial harm'' facilities. PHMSA 
has historically reviewed plans for both types of facilities for 
accuracy and completeness, communicated those findings to the 
operators, and required correction where needed. Furthermore, the 
requirements in part 194 for pipeline facilities that could cause 
``substantial harm'' are the same as the requirements for pipeline 
facilities that could cause ``significant and substantial harm.'' 
Distinguishing between the two creates unnecessary categories and some 
degree of burden to operators and PHMSA. PHMSA proposes to remove these 
terms, clarify the applicability of part 194 in Sec.  192.3, and thus 
eliminate a minor regulatory burden associated with justifying the 
appropriate determination. This change would be consistent with the 
authorizing legislation, OPA 90, and does not compromise safety since 
the distinction between ``substantial harm'' and ``significant and 
substantial harm'' has no effect on the plan requirements.
    PHMSA is also proposing additional provisions to make it easier for 
an operator to prepare and submit response plans. These changes would 
include: (1) Allowing operators to use spill modeling for estimating 
WCDs; (2) requiring operators to submit plans electronically; (3) 
allowing operators to submit DOT annexes to existing response plans 
prepared for state regulators; and (4) clarifying that an operator must 
submit plans before putting a pipeline facility in service rather than 
prior to beginning construction. PHMSA is also proposing technical and 
editorial changes for consistency and clarity. The following is a 
section by section discussion of the proposed changes.
Section 194.3 Applicability.
    Section 194.3 defines the applicability of part 194. Part 194 
applies to onshore oil pipeline facilities that, because of its 
location, the operator determines that oil discharged from any point on 
the pipeline facility could reasonably be expected to adversely affect 
any navigable waters in the U.S. or adjoining shorelines. PHMSA is 
proposing to revise this section to clarify that part 194 applies to 
pipeline facilities that could affect the navigable waters of the U.S. 
or adjoining shorelines within 12 hours, with an exception for smaller-
diameter or shorter pipelines that cannot adversely affect navigable 
waters within 4 hours.
    These changes would preserve the current exceptions in Sec.  
194.101(b) for: (1) Pipeline facilities where a discharge would not 
affect water within 12 hours of the release, and (2) pipeline 
facilities 6\5/8\ inches or less in diameter and 10 miles or less in 
length where a discharge would not be able to affect water within 4 
hours of the discharge. The current exception in Sec.  194.101(b)(1) is 
not explicitly retained because that exception only applies if the 
pipeline is not in proximity to navigable waters. Since part 194 does 
not apply to pipelines that cannot affect navigable waters, the 
exception in Sec.  194.101(b)(1) is meaningless. This change will, 
therefore, not have an effect on the number of operators subject to the 
part 194 requirements since all FRPs currently submitted to PHMSA are 
for pipelines that are greater than 6\5/8\ in diameter and could affect 
navigable waters within 12 hours of a release or are less than 6\5/8\ 
in diameter and can affect navigable waters within 4 hours of a 
release. The proposed changes will provide increased clarity regarding 
the applicability of part 194 without affecting safety.
    These proposed amendments will also clarify that part 194 is not 
applicable to operators of onshore oil pipeline facilities that are 
6\5/8\ inches or less in diameter and greater than 10 miles in length 
or greater than 6\5/8\ inches in diameter and 10 miles or less in 
length that do not affect navigable waters or adjoining shorelines. The 
existing exceptions omit the possible combinations of small diameter 
pipelines longer than 10 miles in length and larger diameter pipelines 
10 miles or less in length. This incorrectly implies that operators of 
those onshore oil pipelines must submit response plans even if they 
would not affect navigable waters or adjoining shorelines. Given that 
OPA applies to facilities that could affect navigable waters and 
adjoining shorelines, an FRP is not required for such facilities.
Section 194.5 Definitions
    Section 194.5 provides definitions specific to part 194. PHMSA is 
proposing to add, revise, and remove several definitions from this 
section to ensure the terms used throughout part 194 are clear and 
accurate. PHMSA also believes that amending certain definitions in part 
194 will help improve the readability of the part.
Area Contingency Plan (ACP) and National Contingency Plan (NCP)
    PHMSA proposes to add definitions for National Contingency Plan 
(NCP) \5\ and Area Contingency Plan (ACP) in part 194. The proposed 
rule defines the NCP as the National Oil and Hazardous Substances 
Pollution Contingency Plan codified in 40 CFR part 300. The NCP 
provides the national-level organizational structure and procedures for 
preparing for and responding to oil spills and other hazardous 
releases. PHMSA also proposes to define ACP as a regional response plan 
prepared in accordance with OPA 90 and the NCP.
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    \5\ 40 CFR part 300, National Contingency Plan, NCP.
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    Various environmental laws and regulations, primarily the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) \6\, OPA 90, and the NCP establish tiered classifications of 
response plans to ensure that the government and other entities have 
adequate protocols and resources in place to respond to an oil spill

[[Page 21144]]

regardless of the scope of the spill. The broadest response plan is the 
nationwide NCP, which was created by CERCLA and is codified by the 
Environmental Protection Agency in 40 CFR part 300. ACPs are regional 
response plans required by OPA 90 which cover smaller geographical 
areas defined in the NCP. The most detailed plans are facility-specific 
response plans, which must be consistent with the applicable ACPs and 
the NCP. Since PHMSA uses the terms ACP and NCP throughout part 194, 
the regulations would benefit from spelling out and defining these 
terms.
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    \6\ Pub. L. 95-510, aka Superfund.
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Worst-case Discharge
    Part 194 requires an operator to determine a ``worst-case 
discharge'' (WCD) volume to account for in its FRP. The WCD is the 
largest of three elements: (1) Largest discharge from a line section 
calculated by adding the possible amount released following a pipeline 
failure before a pipeline is shutdown with the line section drain down 
after shutdown; (2) volume of largest breakout tank or battery of tanks 
with credits for preventative measures; or (3) largest historic 
discharge. Currently, the WCD is defined as the largest foreseeable 
discharge of oil, including discharge from fire or explosion, in 
adverse weather conditions. PHMSA is proposing to remove the phrase 
``in adverse weather conditions'' from the definition of WCD and 
instead require operators consider adverse weather in Sec.  194.107 
when developing the plan. Potential weather conditions have no effect 
on calculation for the volume of oil discharged from a pipeline 
facility, but is an important consideration for planning the spill 
response itself. This change may therefore improve the quality of FRPs.
Specified Minimum Yield Strength
    PHMSA is proposing to remove the definition of ``specified minimum 
yield strength'' since the term only appears in Sec.  194.101, which is 
a section PHMSA is proposing to remove. This definition, therefore, 
would no longer be necessary.
Tertiary Containment
    PHMSA is proposing to add a definition for ``tertiary 
containment,'' which appears in Sec.  194.105 but is not defined. 
PHMSA's interpretation \7\ of ``tertiary containment'' is based on the 
definition of secondary containment in the National Fire Protection 
Association (NFPA) standard NFPA 30, ``Flammable and Combustible 
Liquids Code,'' which PHMSA would also incorporate by reference into 
part 194. PHMSA proposes to codify this term, consistent with PHMSA's 
previous interpretation, as a dike, berm, or other physical containment 
outside of the secondary containment. NFPA 30 defines secondary 
containment for piping systems as containment that is external to and 
separate from the primary piping system; a secondary containment tank 
is defined as one that has an inner wall and an outer wall with a means 
for monitoring the space between the walls for leaks.
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    \7\ PHMSA. Interpretation Response #PI-14-0010, 10/6/2014. 
https://www.phmsa.dot.gov/regulations/title49/interp/PI-14-0010.
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Contract or Other PHMSA-approved Means
    PHMSA is proposing to revise the definition of ``contract or other 
approved means'' to clearly define which methods for documenting the 
availability of adequate response resources, other than a signed 
contract with an oil spill removal organization (OSRO), are approved. 
PHMSA also proposes to clarify that documentation of active membership 
in cooperative or mutual aid agreements is also approved. The proposed 
revisions add clarity and transparency to PHMSA's review and approval 
of plan documentation.
Onshore Oil Pipeline Facilities
    PHMSA proposes amending the definition of ``onshore oil pipeline 
facilities'' to clarify the scope of the part 194 regulations in light 
of potential ambiguity regarding the proper classification of pipelines 
under the CWA.
    The CWA defines ``onshore facility'' as ``any facility . . . of any 
kind located in, on, or under any land within the United States other 
than submerged land.'' 33 U.S.C. 1321(a)(10). The President has 
delegated to the Secretary of Transportation the authority to review 
and approve response plans for ``transportation-related'' onshore 
facilities, including pipelines. See E.O. 12777, section 2(d)(2) (Oct. 
18, 1991). With respect to pipelines, the Secretary of Transportation 
has delegated that authority to PHMSA. See 49 CFR 1.97(c)(2).
    The CWA defines ``offshore facility'' to include ``any facility of 
any kind located in, on, or under, any of the navigable waters of the 
United States.'' Id. section 1321(a)(11). The President has delegated 
to the Secretary of the Interior the authority to review and approve 
response plans for ``offshore facilities.'' See E.O. 12777, section 
2(d)(3). Under a Memorandum of Understanding (MOU), the Secretary of 
the Interior has re-delegated his authority over ``transportation-
related'' facilities to the Secretary of Transportation to the extent 
those facilities are ``located landward of the coast line.'' The MOU 
provides that ``[t]he term `coast line' shall be defined as in the 
Submerged Lands Act (43 U.S.C. 1301(c)) to mean `the line of ordinary 
low water along that portion of the coast which is in direct contact 
with the open sea and the line marking the seaward limit of inland 
waters.''' 40 CFR part 112, appendix B. To the extent the MOU re-
delegates authority over pipelines from the Secretary of the Interior 
to the Secretary of Transportation, the Secretary of Transportation has 
delegated that authority to PHMSA. See Memorandum from the Secretary to 
the Administrator, PHMSA, re: Ratification of Research and Special 
Programs (``RSPA'') and PHMSA Approvals of Oil Spill Response Plans, 
and Delegation of Authority to PHMSA (Aug. 18, 2016).
    Thus, PHMSA has been delegated authority to review and approve 
response plans for pipelines located landward of the coast line, 
regardless of whether those pipelines are considered under the CWA's 
definitions to be ``onshore facilities,'' ``offshore facilities,'' or 
both.
    Beginning with the promulgation of 49 CFR part 194 in 1993, PHMSA 
has implemented its authority under the CWA by treating the entirety of 
every pipeline located landward of the coast line as an ``onshore 
facility'' for purposes of the CWA, even if some segments cross 
navigable waters. In other words, for the purposes of part 194, PHMSA 
does not consider that there are any ``offshore'' pipeline facilities 
landward of the coast line. Thus, the current version of Sec.  194.5 
defines ``onshore oil pipeline facilities'' to include only those 
facilities ``in, on, or under, any land within the United States other 
than submerged land,'' while defining ``high volume area'' in a way 
that recognizes that an ``onshore oil pipeline facility'' may ``cross a 
major river or other navigable waters.''
    In recent litigation, a plaintiff asserted that every segment of a 
pipeline landward of the coast line that crosses navigable waters is an 
``offshore facility,'' and that PHMSA acted unlawfully in approving 
response plans covering such segments pursuant to regulations that only 
apply to facilities ``in, on, or under, any land.'' The court 
disagreed, holding that ``PHMSA's interpretation of oil pipelines that 
cross navigable waters as single onshore facilities is reasonable 
within the meaning of the CWA.'' Nat'l Wildlife

[[Page 21145]]

Fed. v. Sec'y of the Dep't of Transp., 374 F. Supp. 3d 634, 647 (E.D. 
Mich. 2019).
    PHMSA continues to implement its authority under the CWA consistent 
with its long-held interpretation that the entirety of every pipeline 
located landward of the coast line is an ``onshore facility'' for 
purposes of the CWA, even if some segments cross navigable waters. To 
provide additional certainty, however, PHMSA proposes amending the 
definition of ``onshore oil pipeline facilities'' to make clear that 
the part 194 regulations cover all pipelines landward of the coast 
line, regardless of whether those pipelines are considered under the 
CWA's definitions to be ``onshore facilities,'' ``offshore 
facilities,'' or both. This change would maintain the status quo and 
have no impact on the substance of the response plans submitted by 
operators. Operators could continue to submit response plans covering a 
response zone made up of multiple facilities, and the requirements for 
those plans would remain unchanged.
Major River
    PHMSA is proposing to remove the definition for ``major river.'' 
This change would not affect the requirements of part 194 as the 
meaningful portions of the definition are repeated elsewhere. The term 
``major river'' only appears in the definition for ``high volume 
area,'' which includes the first part of the ``major river'' definition 
regarding waterways with high flow volumes and vessel traffic. The 
second part of the major river definition is adequately covered by the 
high-volume area definition and appendix B and is unnecessary. 
Additionally, the book that is referenced is outdated, out of print, 
and not readily available to the public.
Section 194.7 Operating Restrictions and Interim Operating 
Authorization
    PHMSA is proposing technical and editorial amendments to Sec.  
194.7 to account for the removal of Sec. Sec.  194.101 and 194.103.
Section 194.9 Incorporation by Reference
    PHMSA is proposing to add a new section to part 194 to list 
standards and documents from the American Petroleum Institute (API), 
the National Fire Protection Association (NFPA), and the United States 
Coast Guard (USCG) that are incorporated by reference (IBR) in this 
part. While the API and NFPA documents were already listed in the 
existing Sec.  194.105 for the purposes of determining the worst-case 
discharge of breakout tanks, part 194 lacked a specific IBR section 
identifying which editions of the standards were IBR into part 194. 
These are the same editions that are currently incorporated by 
reference in part 195.
API Recommended Practice 651, Cathodic Protection of Aboveground 
Petroleum Storage Tanks, Third Edition
    API Recommended Practice (RP) 651, Third Edition (2007) specifies 
procedures and practices for applying cathodic protection, a method of 
protecting metallic facilities from corrosion, to aboveground petroleum 
storage tanks. This RP contains: (1) Procedures and practices for 
effective corrosion control on aboveground storage tank bottoms through 
the use of cathodic protection; (2) provisions for the application of 
cathodic protection to existing and new aboveground storage tanks; and 
(3) information and guidance for cathodic protection specific to 
aboveground metallic storage tanks in hydrocarbon service. Section 8 of 
the RP sets forth cathodic protection criteria to determine whether 
adequate cathodic protection has been achieved on aboveground breakout 
tanks. Compliance with the cathodic protection procedures and practices 
in API RP 651, API Std 650, and API Std 653, as applicable, allows an 
operator to claim a 5% prevention credit to reduce the calculated WCD 
of a breakout tank.
API Recommended Practice 2350, Overfill Protection for Storage Tanks in 
Petroleum Facilities, Third Edition
    API RP 2350 Third Edition (2005) is specifically limited to tanks 
associated with marketing, refining, pipeline and similar facilities 
containing Class I or Class II petroleum liquids. It addresses minimum 
overfill and damage prevention practices for aboveground storage tanks 
in petroleum facilities, including refineries, marketing terminals, 
bulk plants, and pipeline terminals that receive flammable and 
combustible liquids. In Sec.  194.105, operators may claim a 5% 
prevention credit to reduce the calculated WCD of a breakout tank if 
the tank has an overfill protection system that complies with API RP 
2350.
API Standard 620, Design and Construction of Large, Welded, Low-
Pressure Storage Tanks, 11th Edition (including Addendum 1, Addendum 2, 
and Addendum 3)
    API Standard (Std) 620, 11th Edition (2008), along with Addendum 1 
(2009), Addendum 2 (2010), and Addendum 3 (2012) specifies design, 
construction, and testing requirements for large, field-assembled, 
welded steel tanks used to store petroleum, petroleum products, or 
other liquids used in the petrochemical industry. Tanks designed, 
constructed, and tested in accordance with API Std 620 are rated to 
operate with a vapor pressure up to 15 psig and a metal temperature 
below 250 [deg]F. Section 194.105(b)(4) allows an operator to reduce 
the calculated WCD from a breakout tank by 10% if the tank is built and 
repaired in accordance with API Std 620.
API Standard 650, Welded Steel Tanks for Oil Storage, 11th Edition 
(Including Addendum 1, Addendum 2, Addendum 3, and Errata)
    API Std 650, Eleventh Edition (2007), along with Addendum 1 (2008), 
Addendum 2 (2009), Addendum 3 (2011), and Errata (2011) establishes 
minimum requirements for material, design, fabrication, erection, and 
testing for vertical, cylindrical, aboveground, closed- and open-top, 
welded storage tanks in various sizes and capacities for internal 
pressures approximating atmospheric pressure. This standard applies 
only to tanks whose entire bottom is uniformly supported and to tanks 
in non-refrigerated service that have a maximum design temperature of 
93[deg]C (200 [deg]F) or less. In Sec.  194.105, operators may claim a 
10% prevention credit to reduce the calculated WCD of a breakout tank 
if the tank is built and repaired in accordance with API Std 650 and 
API Std 653, if applicable. Additionally, operators may claim a 5% 
prevention credit if the breakout tank is cathodically protected and 
tested in accordance with API Std 650 and API 651, if applicable.
API Standard 653, Tank Inspection, Repair, Alteration, and 
Reconstruction, Third Edition (Including Addendum 1, Addendum 2, 
Addendum 3, and Errata)
    API Std 653, Third Edition (2001), along with Addendum 1 (2003), 
Addendum 2 (2005), Addendum 3 (2008), and Errata (2008), provides 
minimum requirements for maintenance inspection, repair, alteration, 
relocation, and reconstruction of aboveground steel oil storage tanks 
once they have been placed in service, manufactured in accordance with 
API Std 650 or its predecessor API 12C. In Sec.  194.105, operators may 
claim a 10% prevention credit to reduce the calculated WCD of a 
breakout tank if the tank is repaired in accordance with API Std 653 
and built and repaired in accordance with API Std 650, as applicable.

[[Page 21146]]

NFPA-30, Flammable and Combustible Liquids Code, 2012 Edition 
(Including Errata 30-12-1 and Errata 30-12-2)
    NFPA 30, 2012 Edition, provides fundamental safeguards for the 
storage, handling, and use of flammable and combustible liquids. It is 
a relatively broad document covering general fire safety considerations 
for facilities where flammable and combustible liquids are present and 
specific requirements for a number of different types of situations and 
facilities. In Sec.  194.105(b)(4), NFPA 30 is referenced to determine 
whether prevention credits can be applied for breakout tanks for 
secondary containment or drainage/treatment. Most breakout tanks are 
aboveground storage tanks covered under Chapter 22 of NFPA 30. Section 
22.11 covers the spill control specifications for dikes, berms, 
secondary containment tanks, impoundment, and drainage. If a breakout 
tank is provided secondary containment in accordance with the 
applicable provisions of NFPA 30, then the operator may reduce the 
calculated WCD of the tank by 50% as a prevention credit.
Guidelines for the U.S. Coast Guard Oil Spill Removal Organization 
Classification Program
    PHMSA proposes to IBR the United States Department of Homeland 
Security, United States Coast Guard (USCG) ``Guidelines for the U.S. 
Coast Guard Oil Spill Removal Organization Classification Program,'' 
June 2019.\8\ This document describes the requirements for OSROs to be 
classified by the USCG to respond to and recover oil spills of various 
sizes at various locations. The USCG classifies OSROs based on the 
location of their response resources and an assessment of their ability 
to mobilize those resources. An OSRO's response resources (e.g., booms, 
skimmers, vessels, storage, and personnel) and response times must meet 
or exceed the response capability caps needed by a facility, tank 
vessel, and non-tank vessel plan holder.\9\ Pursuant to 33 CFR parts 
154 and 155, OSROs are classified into three tiers based on their 
response time capabilities. Tier 1 OSROs have the most stringent 
response time requirements and must be able to deploy the specified 
quantity of initial resources on-site within 12 hours of notification 
(6 hours within a higher-volume port area). These response time 
requirements are further discussed in Chapter 4 of the USCG's OSRO 
Classification Program Guidelines. The document also addresses 
personnel training, equipment maintenance, and other requirements OSROs 
must meet to be classified. OSROs are periodically inspected by the 
USCG to confirm that they still meet the readiness requirements 
described in this document.
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    \8\ Available at https://homeport.uscg.mil/Lists/Content/Attachments/55022/2019%20Guidelines%20for%20the%20US%20Coast%20Guard%20OSRO%20Classification%20Program.pdf.
    \9\ Section 311(j) of the Federal Water Pollution Control Act 
(FWPCA), amended by section 4202 of the Oil Pollution Act of 1990 
(OPA 90), requires the preparation and submission of response plans 
by the owners or operators of certain oil-handling facilities and 
for all vessels defined as ``tank and non-tank vessels'' (hereafter 
referred to as plan holders). Plan holders, through their response 
plans, must address the complex system for assembling, mobilizing, 
and controlling response resources to maintain statutory compliance 
as well as being prepared to respond to oil spills within their area 
of operation. Plan holders must submit a response plan to the USCG 
that identifies and ensures, by contract or other approved means, 
the availability of response resources (personnel and equipment) 
necessary to remove, to the maximum extent practicable, a WCD, 
including a discharge resulting from fire or explosion, and to 
mitigate or prevent a substantial threat of such a discharge. To 
relieve the burden upon plan holders to provide detailed lists of 
response resources, the USCG created the OSRO classification 
program, so that plan holders would be required to identify the 
OSROs only by name in their response plans, if the OSRO meets a plan 
holder's planning requirements.
---------------------------------------------------------------------------

    A contract with a USCG-classified OSRO is not required to comply 
with part 194; however, it is a convenient way of providing and 
documenting adequate response resources in an Oil Spill Response Plan 
(OSRP). PHMSA proposes to revise Sec.  194.115 to adopt the response 
resources requirements from the USCG oil facilities regulations in 
appendix C to part 154, Guidelines for Determining and Evaluating 
Required Response Resources for Facility Response Plans, and the 
existing response time requirements identical to the WCD Tier 1 
requirements in the ``Guidelines for the U.S. Coast Guard Oil Spill 
Removal Organization Classification Program.'' Therefore, a contract 
with an OSRO classified by the USCG as a WCD Tier 1 for facilities 
meets the response resources requirements in Sec. Sec.  194.115 and 
194.107(b)(1)(vi).
Section 194.101 Operators Required to Submit Plans
    PHMSA is proposing to remove Sec.  194.101 and incorporate the most 
relevant exceptions found in this section into the applicability 
section at Sec.  194.3. Including these conditions into the 
applicability statement serves the same purpose.
Section 194.103 Significant and Substantial Harm; Operator's Statement
    PHMSA is proposing to remove this section and all references to 
``significant and substantial harm'' and ``substantial harm.'' Section 
194.103 defines conditions where a pipeline facility can be expected to 
cause ``significant and substantial harm to the environment in the 
event of a discharge of oil.'' If these conditions are not met, then a 
WCD can be assumed to cause ``substantial harm.'' There is no 
functional difference between the requirements for facilities that 
could cause ``significant and substantial harm'' and facilities that 
could cause ``substantial harm.''
    Currently, the requirements for preparing a ``significant and 
substantial harm'' or ``substantial harm plans'' are nearly the same, 
as shown in the table below.

------------------------------------------------------------------------
  A ``significant and substantial harm''
                   plan:                    A ``substantial harm'' plan:
------------------------------------------------------------------------
(1) includes a statement for why the        (1) does not require a
 pipeline could cause significant and        statement of harm;
 substantial harm according to the
 conditions at 49 CFR 194.103;.
(2) must be approved by PHMSA; and........  (2) must be reviewed by
                                             PHMSA; and
(3) must be updated and resubmitted to      (3) must be updated and
 PHMSA within 5 years of each approval.      resubmitted to PHMSA within
                                             5 years of submission.
------------------------------------------------------------------------

    PHMSA reviews all ``significant and substantial harm'' and 
``substantial harm'' plans equally and requires operators to correct 
any deficiencies the agency identifies. Operators with ``significant 
and substantial harm'' plans in compliance with part 194 receive a 
letter from PHMSA stating the agency approves the plan. Operators with 
``substantial harm'' plans in compliance with part 194 receive a letter 
from PHMSA stating the agency reviewed the plan for compliance. The 
differentiation in plan types appears to cause confusion as evidenced 
by submission of ``significant and substantial harm'' statements for 
pipelines that do not meet the criteria. PHMSA has also received 
``substantial harm'' plans that include resubmittal requirements for 
``significant and substantial harm'' plans. For this reason, PHMSA is 
proposing to remove Sec.  194.103. In

[[Page 21147]]

Sec.  194.119, PHMSA proposes to review all facility response plans for 
compliance and issue letters of approval to acceptable plans, which is 
consistent with how PHMSA currently manages both types of plans it 
receives. Similarly, in Sec.  194.121, PHMSA proposes to require 
operators to review and resubmit all response plans within five years 
of the date of the last approval. This administrative change will not 
impact safety since the majority of plans are updated before the five-
year resubmission timeframe due to other changes affecting a plan.
Section 194.105 Worst Case Discharge
    Each operator must determine the WCD of oil possible from its 
pipeline facility. PHMSA is proposing to remove the requirement to 
include historical discharge volumes in the WCD calculation and allow 
the use of spill models. Currently, the regulations define a WCD as the 
largest volume of oil discharged when comparing: (1) The maximum 
release from a pipeline line section; (2) the capacity of the single 
largest breakout tank, or capacity of a battery of tanks within a 
single secondary containment, with applicable prevention credits 
applied and; (3) the largest historic discharge. An operator must 
provide documentation showing that it considered and correctly 
calculated the potential discharge volume for each scenario. PHMSA then 
compares the operator's historical and calculated discharge volumes 
during its review of the operator's entire FRP. If the historical 
volume is greater than the calculated volume, PHMSA considers the 
calculation incorrect, and the operator must recalculate the volume or 
explain the anomaly.
    PHMSA has determined that requiring operators to submit historical 
discharge volumes in their FRPs is unnecessary and duplicative of other 
reporting requirements in the Federal Pipeline Safety Regulations. 
Removing the requirement for operators to submit this information 
should have no effect on safety. The largest historical discharge is 
almost never the WCD and PHMSA has access to historical spill volumes 
through accident reports. Only the largest of the listed estimates is 
the WCD, and in the past five years, PHMSA has found only one instance 
in which a plan noted a historic spill volume that exceeded the 
calculated WCD volume, and in that instance, the difference was less 
than 50 barrels of hazardous liquid.
    PHMSA will still have access to historical spill information. 
Section 195.50 requires operators to report accidents to PHMSA via DOT 
Form 7000.1, which includes the volume of product spilled. PHMSA can 
use the data from accident reports to evaluate the historic WCD volume 
of a facility instead of requiring the operator to provide the 
information separately. Removing the requirement to report historic 
discharge in Sec.  194.105(b)(2) will provide some cost savings to 
operators when preparing their plans without impacting the quality of 
FRPs or reducing the data available for analysis by PHMSA. The revised 
requirements at Sec.  194.105 would require calculations for: (1) The 
maximum release from a pipeline section, and (2) capacity of the single 
largest breakout tank or battery of tanks within a single secondary 
containment with applicable prevention credits applied.
    PHMSA is also proposing to clarify that an operator may use oil 
spill modeling programs to calculate the WCDs. These programs calculate 
the likelihood of a spill, as well as the magnitude and environmental 
impacts that might occur. An adequate spill model could also provide 
more accurate predictions of potential spill volumes. Several operators 
use spill models to calculate WCD for State-required response plans or 
to assist them with managing the integrity of their pipeline 
facilities. PHMSA is aware of several models that use the same 
variables as the current regulatory requirements, such as pipeline 
diameter, line section length, detection and shutdown times, and 
maximum product flow rates. Certain oil spill modeling programs may 
also consider terrain, proximity to navigable waters, mechanical 
capabilities of valves, and other variables. These models can also 
provide valuable information if a spill were to occur anywhere along 
the pipeline facility, not just at the location of the WCD.
Section 194.107 General response plan requirements
    Section 194.107(a) describes the general content, such as 
procedures and resources, an operator must include in a response plan. 
An operator's response plan must prove that the operator can adequately 
respond to a WCD. PHMSA is proposing a number of revisions to codify 
PHMSA policy, eliminate redundant reporting, and make clarifications 
consistent with Federal policy and terminology. Together, these 
revisions will result in higher quality FRPs, improved regulatory 
clarity, and reduced burden.
    Consistent with the revisions to Sec.  194.103 discussed earlier, 
PHMSA is proposing to amend Sec.  194.107(a) to remove any discussion 
of ``significant and substantial harm.'' PHMSA is also proposing to 
remove the reference to the term ``substantial threat.'' Operators must 
consider WCDs regardless of whether they are a result of abnormal 
operating conditions, so including the term substantial threat is 
redundant of the WCD requirement. In addition, PHMSA proposes to move 
the phrase ``in adverse weather conditions'' from the definition of WCD 
to Sec.  194.107(a). While weather conditions do not change the 
calculations for WCD values, adverse weather or climate conditions can 
affect how to plan for and respond to spills. Adding a reference to 
adverse weather in the plan requirements would clarify that response 
planning must consider the operating environment that may be present 
during a spill. These changes codify PHMSA's current practices.
    Additionally, PHMSA is proposing to revise Sec.  194.107(b) to 
codify current PHMSA practices and streamline plan submission 
requirements for consistency with other Federal programs. For example, 
PHMSA currently lists a requirement to identify procedures for 
obtaining permission for in-situ burning or the use of dispersants 
under the section for complying with the NCP. However, in-situ burning 
and dispersants are not permitted in all areas, especially onshore. 
PHMSA therefore proposes to move this requirement to the section on 
complying with ACPs and clarifying that operators only need to provide 
procedures for those activities if they are allowed in the applicable 
ACP.
    Section 194.107(c) specifies what each response plan must include. 
PHMSA is proposing changes to align the regulations with current PHMSA 
practices. PHMSA is proposing to revise Sec.  194.107(c) by adding a 
requirement to include procedures for providing applicable Safety Data 
Sheets to emergency responders and the Federal On-Scene Coordinator 
(FOSC) within six hours of a spill and clarify that the immediate 
notification procedures in Sec.  194.107(c)(1)(ii) must include 
notifications to the National Response Center (NRC). The requirement to 
provide Safety Data Sheets to first responders codifies a self-
executing requirement in section 14 of the Protecting our 
Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016 
(Pub. L. 114-183) and NRC notification is already required at Sec.  
195.52. PHMSA is also proposing to eliminate the requirement to provide 
a list of response resources if an operator contracts with an OSRO 
classified by the U.S. Coast Guard (USCG) as a WCD

[[Page 21148]]

Tier 1 \10\ organization for the operating environments (``River/
Canal,'' ``Inland,'' or ``Great Lakes,'') that the pipeline facility 
could affect. This is consistent with other Federal requirements, 
codifies PHMSA's current practices, and eliminates an unnecessary 
burden on the operator. OSROs provide lists of response resources to 
the expert agency USCG as a part of the classification program, 
therefore requiring this information from an operator is redundant. 
PHMSA also proposes to clarify that procedures for testing equipment 
are only necessary if an operator controls response equipment; 
procedures for maintaining equipment are inapplicable to operators that 
rely solely on OSROs and that do not own response equipment.
---------------------------------------------------------------------------

    \10\ WCD Tier 1, or W1 is a USCG classification for OSROs. WCD 
tier 1 has the most stringent requirements for deployment and 
response times among the WCD tiers. For more information, see the 
Guidelines for the U.S. Coast Guard Oil Spill Removal Organization 
Classification Program. April 2013. https://homeport.uscg.mil/Lists/Content/Attachments/1286/Guidelines%20for%20the%20USCG%20OSRO%20Classification%20Program.pdf.
---------------------------------------------------------------------------

    Finally, PHMSA is proposing editorial revisions throughout this 
section and changes to make these requirements more consistent with 
current response practices. The most notable of these changes include: 
(1) Amending the term ``drill program'' to read ``drill and exercise 
program''; (2) specifying that operators can satisfy the requirement 
for a drill and exercise program by following the current National 
Preparedness for Response Exercise Program \11\ (PREP) guidelines; and 
(3) changing the term ``response management system'' to ``incident 
command system'' in Sec.  194.107(c)(3). These changes ensure drill and 
exercise programs are consistent nationally and that PHMSA's 
terminology is consistent with the NCP and the National Response 
Framework.\12\
---------------------------------------------------------------------------

    \11\ https://www.regulations.gov/document?D=USCG-2011-1178-0110.
    \12\ U.S. Department of Homeland Security, Federal Emergency 
Management Agency. 2013. National Response Framework. https://www.fema.gov/media-library-data/20130726-1914-25045-8516/final_national_response_framework_20130501.pdf.
---------------------------------------------------------------------------

Section 194.109 Submissions of state response plans
    Section 194.109 allows operators to prepare and submit a response 
plan prepared to comply with a State law or regulation instead of 
creating a separate plan to comply with part 194, so long as the plan 
prepared for a State law or regulations meets or exceeds the 
requirements of part 194. PHMSA is proposing to allow operators to 
submit to PHMSA a plan that was prepared to meet a State requirement if 
the operator also submits a DOT-specific appendix addressing any 
additional Federal requirements under part 194 that are not addressed 
in the State plan. This will reduce the burden on operators to prepare 
separate plans for both PHMSA and a State.
Section 194.113 Information summary
    The required elements of an ``Information Summary'' are provided in 
Sec.  194.113. Currently, the information summary for a core plan must 
provide a listing and description of each response zone covered by that 
plan. Operators have the option to subdivide their response plans into 
``response zones'' in order to have different procedures for specific 
geographical areas. However, currently, any change in the configuration 
of response zones requires amending the core plan. PHMSA proposes to 
instead require that the core plan list the applicable response zone 
appendices and move the requirement to list the response zones to those 
appendices. This will slightly reduce the burden to preparing and 
updating plans because it will allow operators to only modify response 
zone appendices without having to also change the core plan for changes 
to response zone configuration. PHMSA is also removing all references 
to ``significant and substantial harm'' consistent with the removal of 
Sec.  194.103.
    PHMSA also proposes to revise Sec.  194.113 to clarify that maps, 
including current National Pipeline Mapping System (NPMS) \13\ 
submissions, are an acceptable method of describing the location of the 
response zone and pipeline facilities. Clarifying that maps are an 
acceptable alternative to a listing of line segment locations codifies 
current PHMSA policy. The proposed rule would also allow operators to 
satisfy the requirements at Sec.  194.113 by referencing the NPMS, 
provided that their NPMS submission is current and includes the PHMSA-
issued FRP identification number. Currently, the NPMS allows, but does 
not require, an operator to include the FRP identification number in 
their geospatial data. Allowing operators to reference NPMS submissions 
eliminates the burden for operators to provide additional maps or a 
list of line segments in addition to information they already submit 
for the NPMS. Additionally, if an operator identifies the applicable 
FRPs on their NPMS submissions, PHMSA can use the NPMS to quickly and 
accurately identify that FRP for a FOSC during a spill or other type of 
emergency. Finally, PHMSA proposes eliminating the requirement for 
operators to provide a basis for determining if a WCD would cause 
``significant and substantial harm,'' as PHMSA is proposing to remove 
that term from part 194. These changes result in a minor reduction in 
burden with no impact on the quality of operators' FRPs.
---------------------------------------------------------------------------

    \13\ Section 195.61 requires operators to provide geospatial 
data regarding hazardous liquid pipeline facilities to PHMSA.
---------------------------------------------------------------------------

Section 194.115 Response resources
    PHMSA is proposing to harmonize its oil pipeline response planning 
requirements in Sec.  194.115 with those of the USCG to ensure that 
pipeline operators have the necessary personnel and equipment available 
to remove to the maximum extent practicable, a WCD. This proposed 
amendment is based on recommendations from the National Transportation 
Safety Board's (NTSB) accident report on the Enbridge oil spill near 
Marshall, Michigan, in 2010.\14\ The NTSB recommended a DOT audit of 
PHMSA's FRP program (NTSB Recommendation P-12-1) and recommended PHMSA 
amend part 194 to harmonize onshore oil pipeline response plan 
requirements with those of the USCG and the U.S. Environmental 
Protection Agency to ensure that operators have adequate resources 
available to respond to worst-case discharges (NTSB Recommendation P-
12-9).
---------------------------------------------------------------------------

    \14\ Enbridge Incorporated Hazardous Liquid Pipeline Rupture and 
Release, Marshall, Michigan, July 25, 2010, Pipeline Accident Report 
NTSB/PAR-12/01 (Washington, DC: National Transportation Safety 
Board, 2012).
---------------------------------------------------------------------------

    In response to these recommendations, DOT initiated an audit of the 
onshore pipeline facility response plan program, including an addendum 
from PHMSA. The DOT audit found that PHMSA's current regulations do not 
adequately specify the appropriate quantity or type of response 
resources needed to respond to a spill.\15\ To address these issues, 
the audit recommended PHMSA amend Sec.  194.115(a) to reference the 
USCG's ``Guidelines for Determining and Evaluating Required Response 
Resources for Facility Response Plans'' \16\ and to define the meaning 
of the response tiers in Sec.  194.115(b).
---------------------------------------------------------------------------

    \15\ Audit Report: An Assessment of the Office of Pipeline 
Safety's Onshore Pipeline Facility Response Plan Program, U.S. 
Department of Transportation, June 19, 2017. https://www.transportation.gov/sites/dot.gov/files/docs/mission/administrations/office-policy/300246/osrp-audit-report-final-dotp-12-1and2.pdf.
    \16\ 33 CFR part 154, appendix C.

---------------------------------------------------------------------------

[[Page 21149]]

    PHMSA is proposing both of these amendments in this rulemaking. In 
Sec.  194.115(a), PHMSA is proposing to require that operators have 
adequate response resources as defined in USCG's ``Guidelines for 
Determining and Evaluating Required Response Resources for Facility 
Response Plans.'' Those guidelines define how to identify adequate 
response resources to remove, to the maximum extent practicable, a WCD. 
The proposed changes will not affect the cost of operators' compliance 
with part 194, as PHMSA uses the USCG's ``Guidelines for Determining 
and Evaluating Required Response Resources for Facility Response 
Plans'' and the USCG Response Resource Inventory to assess and verify 
the adequacy of operator's response resources in FRPs.\17\
---------------------------------------------------------------------------

    \17\ At the recommendation of NTSB, PHMSA harmonized its 
procedures for reviewing oil spill response plans with those of the 
USCG and the EPA. More information can be found at https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=P-12-009.
---------------------------------------------------------------------------

    In Sec.  194.115(b), PHMSA is proposing to include additional 
guidance on the meaning of the response tiers. The USCG's ``Guidelines 
for Determining and Evaluating Required Response Resources for Facility 
Response Plans,'' which PHMSA is proposing to reference in paragraph 
(a), require an operator to ensure the availability of certain 
resources within certain response times for each of three tiers. Tier 1 
resources are local resources that are available for the initial 
response. Tier 2 resources are regional resources available within a 
longer time period and Tier 3 resources are national level resources 
available within an even longer period. PHMSA is proposing, consistent 
with its current practice, to clarify that the response times that 
operators must use differ than the times referenced in the Guidelines. 
Specifically, PHMSA clarifies that a more rapid response to a WCD is 
required in ``high-volume areas'' as defined in Sec.  194.5, rather 
than in ``higher volume port areas'' defined by the USCG in 33 CFR 
154.1020. PHMSA's definition includes substantially more inland 
waterways than the USCG definition, which is limited to 5 ports and 2 
rivers. For example, while the Guidelines require Tier 1 resources 
capable of responding to a WCD arrive within 12 hours at a Great Lakes 
location, PHMSA requires that Tier 1 resources arrive within 6 hours at 
any high-volume area, which includes the Great Lakes.
    As discussed above in the discussion of Sec.  194.107, an operator 
need not provide a list of response resources if that provides evidence 
of a signed, current contract with an OSRO that has received a WCD1 
classification from the USCG. The USCG has determined that an OSRO that 
has received this classification is capable of deploying the maximum 
resources that can reasonably respond to any size spill. In this 
situation, PHMSA determines compliance with Sec.  194.115 by checking 
whether sufficient WCD1-classified OSRO facilities are located within 6 
hours of all high-volume areas within a response zone, or 12 hours of 
all other areas. An operator that satisfies this requirement has shown 
that it has ensured the availability of the highest possible amount of 
resources within the shortest, Tier 1 timeframes, and thus generally 
will greatly exceed the requirements of Sec.  194.115.
Section 194.119 Submission and approval procedures
    PHMSA is proposing minor clarifications to Sec.  194.119 to require 
operators submit FRPs electronically in a PDF or HTML format. The 
current regulations require operators submit two copies of each FRP; 
this is duplicative and has led some operators to believe that PHMSA 
requires them to submit both electronic and paper copies of each FRP. 
PHMSA prefers that operators submit FRPs electronically. Clarifying 
that operators only need to submit an electronic copy of each FRP 
eliminates unnecessary costs associated with printing, shipping, 
scanning, and storing those documents.
    PHMSA is also proposing to require operators respond to PHMSA's 
notification of any alleged deficiency in response plans within 30 
days, consistent with the timeframe given for operators to submit a 
petition for reconsideration of PHMSA's determination of the adequacy 
of their plan. Additionally, the proposed rule requires PHMSA approval 
for all plans and removes the reference to the terms ``substantial 
harm'' and ``significant and substantial harm plans'' in this section 
since PHMSA proposes to remove those terms from all of part 194. 
Finally, PHMSA is proposing to revise Sec.  194.119 to state that PHMSA 
may send a copy of a response plan to the FOSC when requested instead 
of requiring an operator to provide a plan to the FOSC. PHMSA can 
provide FRPs to FOSCs when necessary and relieve operators of this 
burden since PHMSA maintains electronic copies of the FRPs.
Section 194.121 Response plan review and update procedures
    PHMSA is proposing revisions to the response plan and review 
procedures in Sec.  194.121 to require operators to review and resubmit 
all response plans at least every five years from the date of the last 
approval. Consistent with its proposal to remove references and 
requirements based on the terms ``substantial harm'' and ``significant 
and substantial harm,'' PHMSA is removing instances of those terms in 
this section as well.
    Additionally, PHMSA proposes to clarify that an operator must 
submit an FRP before a new oil pipeline facility or an extension of an 
existing pipeline facility becomes operational. As currently written, 
one could interpret the regulations to require that operators submit an 
FRP for a pipeline facility that is under construction. OPA 90 applies 
to a transportation-related pipeline facility that could discharge oil; 
a plan is not required during construction because during construction 
there is no oil in the pipeline that can be discharged.
    Consistent with allowing operators to reference the NPMS to satisfy 
the requirement in Sec.  194.113 to provide the location of response 
zones and pipeline facilities, PHMSA proposes to revise the 
instructions for updating line section information to include newly 
constructed or extended pipelines that are not yet available in NPMS. 
Operators with new segments may continue to reference the NPMS for the 
existing segments, but must include a list and description of any 
segments that are not currently available in the NPMS. This change 
ensures operators referencing the NPMS do not have to create and submit 
new maps of existing pipelines whenever pipelines are extended or 
added.
Appendix A to Part 194
    Appendix A to part 194 provides a recommended format for preparing 
and submitting response plans required by part 194. PHMSA is proposing 
to amend this appendix to reflect the changes to part 194 set forth in 
this proposed rule and to add further guidance. For example, in 
``Section 5. List of Contacts,'' PHMSA is proposing to clarify that an 
operator must include 10-digit telephone numbers in their response 
plans as opposed to just ``a telephone number.'' At ``Section 9. 
Response Zone Appendices,'' PHMSA is proposing additional guidelines 
for operators to include procedures to obtain permission to use 
applicable alternative response strategies, such as in-situ burning or 
dispersants, consistent with applicable ACPs, which was omitted in the 
initial publication of part 194. Also in Section 9, PHMSA proposes to 
include procedures for operators to provide applicable Safety

[[Page 21150]]

Data Sheets to emergency responders and the FOSC within six hours of a 
spill, consistent with the revisions to Sec.  194.107(c) and section 14 
of the PIPES Act of 2016 (Pub. L. 114-183).
Appendix B to Part 194
    PHMSA is proposing to add the Great Lakes to the list of ``Other 
Navigable Waters'' in appendix B to part 194. This change will affect 
one operator whose pipeline currently crosses the Great Lakes, but 
PHMSA does not anticipate this change will affect that operator's plan.

C. Part 195 Transportation of Hazardous Liquids by Pipeline

    Part 195 contains the Federal safety regulations for pipeline 
facilities used to transport hazardous liquids and carbon dioxide. 
Those regulations include reporting requirements and standards for the 
safe design, construction, testing, operation, and maintenance of 
hazardous liquid pipeline facilities. PHMSA is proposing amendments to 
part 195 to adjust the monetary damage criterion for reporting pipeline 
accidents for inflation, clarifying that operators may monitor cathodic 
protection rectifiers remotely, and correcting the organization of the 
IM guidance in appendix C of part 195. PHMSA also proposes editorial 
amendments to Sec.  195.3 to meet requirements from the Office of the 
Federal Register and update the address for API.
Section 195.50 Reporting accidents and Sec.  195.52 Immediate notice of 
certain accidents.
    PHMSA is proposing to revise the definition of an ``accident'' at 
Sec. Sec.  195.50 and 195.52 to adjust the monetary damage threshold 
criterion for inflation. This proposed amendment changes the criteria 
for submitting accident reports and giving immediate telephonic 
notification to the NRC. PHMSA is proposing adjusting the value of the 
property damage threshold from $50,000 to $118,000. In part 195, 
property damage includes the cost of cleanup and recovery, value of 
lost product, and damage to the property of the operator or others, or 
both. Operators would still be required to report any accident that 
caused a death or a personal injury requiring hospitalization; that 
resulted in either a fire or explosion not intentionally set by the 
operator; that resulted in pollution of any stream, river, lake, 
reservoir, or other similar body of water; or that is otherwise 
significant in the judgment of the operator.
    On May 3, 1984, PHMSA's predecessor agency, the Research and 
Special Programs Administration, promulgated a definition for an 
``incident'' at Sec.  191.3 to establish criteria that would trigger 
requirements to report specific events on gas pipeline facilities to 
PHMSA.\18\ The 1984 definition of an incident included a property 
damage threshold of $50,000. In 1994, PHMSA adopted the same value for 
hazardous liquid pipeline accidents.\19\ Today, the property damage 
criteria that triggers incident and accident reporting requirements are 
the same as they were in 1984 and 1994. PHMSA is basing the proposed 
inflation adjustment in this rulemaking on the 1984 date that 
established the $50,000 value for gas pipelines so that the property 
damage criteria remain consistent between gas and hazardous liquid 
pipelines. PHMSA intends to propose a similar change for reporting 
incidents on gas pipeline facilities in a separate regulatory action.
---------------------------------------------------------------------------

    \18\ Transportation of Natural and Other Gas by Pipeline: Annual 
Reports and Incident Reports, 49 FR 18960, (May 3, 1984).
    \19\ Regulatory Review: Hazardous Liquid and Carbon Dioxide 
Pipeline Safety Standards, 59 FR 33388, (June 28, 1994).
---------------------------------------------------------------------------

    One of the issues raised most frequently in comments submitted in 
response to the notification of regulatory reform (82 FR 45750; Oct. 2, 
2017) was the $50,000 property damage threshold for reporting gas 
pipeline incidents and hazardous liquid pipeline accidents. Comments 
submitted in response to the notice of regulatory reform from API, 
AOPL, and GPA Midstream Association \20\ supported an increase in the 
property damage threshold for reporting gas pipeline incidents and 
hazardous liquid pipeline accidents. Based on the average annual 
Consumer Price Index (CPI) from the Bureau of Labor Statistics, $50,000 
in 1984 is approximately $118,000 in 2017 dollars.\21\ At $50,000, the 
current criterion requires operators report relatively minor accidents 
that would not have been reported in 1984 due to inflation in property, 
equipment, and repair costs.
---------------------------------------------------------------------------

    \20\ Formerly the Gas Processors Association.
    \21\ Calculated by multiplying the original property damage 
criteria ($50,000) by the average CPI in 2017 divided by the average 
CPI in 1984. ($50,000 * (245.139/103.933) = $117,931, or 
approximately $118,000). This analysis is based on the CPI for all 
urban consumers (CPIAUCSL) from the Bureau of Labor Statistics, 
accessed via the Federal Reserve Bank of St. Louis. https://fred.stlouisfed.org/series/CPIAUCSL#0.
---------------------------------------------------------------------------

    The proposed revision to the property damage threshold brings the 
accident reporting criteria in-line with the 1984 threshold in 
inflation-adjusted terms. Based on a review of previous accident 
reports, adjusting the figure for inflation would decrease the total 
number of events reportable as accidents by approximately 1%, and 
reduce those reportable due to only the property-damage criterion by 
approximately a third. This rulemaking assumes the threshold set 35 
years ago is still appropriate for today once it is adjusted for 
inflation; however, since the original rulemaking 35 years ago an 
improved safety record has decreased the number of significant events, 
and the safety information needs may have changed. PHMSA seeks comment 
on whether the level of safety information needed from property damage 
only accident reporting should be updated to align with inflation, and 
the extent to which retaining a de facto lower threshold after 
inflation would provide beneficial information on contributing risk 
factors and accident trends.
    PHMSA intends to periodically update the monetary damage threshold 
on a regular basis in the future, potentially biennially. Future 
updates would be based on the same formula used for this adjustment:
[GRAPHIC] [TIFF OMITTED] TP16AP20.001

    Where Tn is the revised damage threshold, Tp is the previous damage 
threshold, CPIn is the average CPI-U for the past calendar year, and 
CPIP is the average CPI-U used for the previous damage threshold. PHMSA 
could subsequently update the monetary damage threshold in accordance 
with this formula either through notice and comment rulemaking, a 
direct final rule, notice on the PHMSA public website, or other means. 
This method is similar to the method that the Federal Railroad 
Administration uses to update the criteria for reporting accidents/
incidents at 49 CFR 225.19 and appendix B to part 225. PHMSA seeks 
comments on the appropriate method and frequency for future updates to 
the monetary damage threshold. PHMSA intends to base any finalized 
version of this provision on the price level at the time of publication 
of the final rule.
    The revised accident reporting criteria will result in fewer 
accident reports being submitted to PHMSA and fewer telephonic 
notifications to the NRC, resulting in cost savings to industry and 
reduced burden on government. While accident reporting does not 
directly affect safety, PHMSA acknowledges that the collection and 
analysis of accident data has indirect safety benefits to both 
operators and regulators. However, reporting accidents with relatively

[[Page 21151]]

minor damage provides comparatively less information value than reports 
with greater damage.
Section 195.573 What must I do to monitor external corrosion control?
    PHMSA is proposing to revise Sec.  195.573(c) to clarify that 
operators may monitor rectifier stations remotely. Rectifiers are 
devices that direct an electrical current on a pipeline to prevent 
external corrosion. Section 195.573(c) currently requires operators to 
regularly inspect rectifiers on hazardous liquid pipelines to ensure 
that they are working correctly. Advances in technology make it 
possible for operators to monitor these electrical systems remotely, 
but it is unclear in the regulations if this is permissible. In this 
rulemaking, PHMSA is proposing to make it clear that operators may 
inspect rectifier stations directly onsite or by way of remote 
monitoring technologies. This rulemaking also proposes to specify that 
such an inspection will consist of amperage and voltage measures in 
order to clarify the requirements of this section for operators and 
PHMSA and State inspectors.
    Remote monitoring is a safe and efficient alternative to in-person 
checks in the field; however, monitoring equipment and the rectifier 
itself must be properly maintained to function safely and as intended. 
PHMSA's experience has shown that rectifiers, often located in remote 
areas, can be subject to damage from a variety of sources, including 
natural forces and vandalism. If an operator chooses to monitor a 
rectifier remotely, PHMSA proposes to require operators to physically 
inspect rectifier stations whenever they conduct a cathodic protection 
test under Sec.  195.573. In accordance with that section, this will 
typically occur once every calendar year, not to exceed 15 months.
Appendix C Guidance for Implementation of an Integrity Management 
Program
    PHMSA is proposing to make minor corrections to the guidance in 
part 195 for implementing Integrity Management (IM) programs on 
hazardous liquid pipelines. API and AOPL submitted comments in response 
to the notification of regulatory reform (82 FR 45750; Oct. 2, 2017) 
concerning appendix C of part 195, noting that portions of the guidance 
for hazardous liquid IM programs, with regard to the identification of 
High Consequence Areas (HCA), are either impracticable or misplaced. 
They commented that the guidance for identifying agricultural drainage 
tiles as possible could-affect HCAs is not feasible. While PHMSA 
provides geographical information system (GIS) maps of other HCAs to 
hazardous liquid pipeline operators through the National Pipeline 
Mapping System (49 U.S.C. 60132(d)), API and AOPL commented that 
drainage tiles are difficult to identify as they are neither mapped by 
PHMSA nor available from any other national-level data source. They 
also identified other items under the guidance for identifying HCAs 
that are more accurately categorized as guidance for identifying 
integrity risk factors elsewhere in the appendix.
    In consideration of those comments, PHMSA has reviewed the guidance 
for implementing a liquid IM program outlined in appendix C of part 195 
and is proposing revisions to address these issues. PHMSA proposes 
revised guidance for considering spills in fields and is moving details 
for considering the physical support of pipelines, maximum operating 
pressure (MOP) exceedances, and natural force damage caused by earth 
movement or seismicity from the guidance for identifying segments that 
could-affect HCAs to the guidance on identifying threats.
    PHMSA also proposes to leave the requirement to consider operating 
conditions (other than MOP exceedances) and flood zones where it 
currently is in the regulations and in the HCA identification guidance. 
API commented that it was not clear why overpressure conditions and 
natural force damage were relevant to identifying HCAs. PHMSA agrees 
that past exceedances of MOP are more relevant to threat 
identification; however, other pipeline operating characteristics such 
as pressure, flow, and mode of operation can influence the predicted 
spill volume, and therefore whether it could affect an HCA. Likewise, 
potential flood conditions may influence whether a release could affect 
an HCA.
    These are primarily editorial revisions to non-binding guidance, 
therefore there are neither direct costs nor benefits. However, clearer 
and more practicable guidance may improve operators' implementation of 
the IM requirements.

V. Availability of Standards Incorporated by Reference

    PHMSA currently incorporates by reference into 49 CFR parts 192, 
193, and 195 all or parts of more than 80 standards and specifications 
developed and published by standard development organizations (SDO). In 
general, SDOs update and revise their published standards every 2 to 5 
years to reflect modern technology and best technical practices. ASTM 
International (ASTM) often updates some of its more widely used 
standards every year. Sometimes multiple editions are published in a 
given year.
    The National Technology Transfer and Advancement Act of 1995 
(NTTAA), Public Law 104-113, directs Federal agencies to use standards 
developed by voluntary consensus standards bodies in lieu of 
government-written standards whenever possible. Voluntary consensus 
standards bodies develop, establish, or coordinate technical standards 
using agreed-upon procedures. In addition, OMB issued Circular A-119 to 
implement section 12(d) of the NTTAA relative to the utilization of 
consensus technical standards by Federal agencies. This circular 
provides guidance for agencies participating in voluntary consensus 
standards bodies and describes procedures for satisfying the reporting 
requirements in the NTTAA.
    Accordingly, PHMSA has the responsibility for determining, via 
petitions or otherwise, which currently referenced standards should be 
updated, revised, or removed, and which standards should be added to 
the Federal Pipeline Safety Regulations. Revisions to materials 
incorporated by reference in the Federal Pipeline Safety Regulations 
are handled via the rulemaking process, which allows for the public and 
regulated entities to provide input. During the rulemaking process, 
PHMSA must also obtain approval from the Office of the Federal Register 
to incorporate by reference any new materials.
    Pursuant to 49 U.S.C. 60102(p), PHMSA may not issue a regulation 
that incorporates by reference any documents or portions thereof unless 
the documents or portions thereof are made available to the public, 
free of charge.
    Further, the Office of the Federal Register issued a rulemaking on 
November 7, 2014, that revised 1 CFR 51.5 to require that agencies 
detail in the preamble of an NPRM the ways the materials it proposes to 
incorporate by reference are reasonably available to interested 
parties, or how the agency worked to make those materials reasonably 
available to interested parties (79 FR 66278).
    To meet its statutory obligation for this rulemaking, PHMSA 
negotiated agreements with various SDOs to provide free online access 
to standards that are incorporated by reference or proposed to be 
incorporated by reference. The standards in the proposed rule are 
available for view at the following locations during the

[[Page 21152]]

comment period; API standards are available at https://publications.api.org/, and NFPA standards are available at https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access, 
and the ``Guidelines for the U.S. Coast Guard Oil Spill Removal 
Organization Classification Program'' is available at https://homeport.uscg.mil/Lists/Content/Attachments/55022/2019%20Guidelines%20for%20the%20US%20Coast%20Guard%20OSRO%20Classification%20Program.pdf.
    In addition, PHMSA will provide individual members of the public 
temporary access to any standard that is incorporated by reference. 
Requests for access can be sent to the following email address: 
[email protected].

VI. Regulatory Analyses and Notices

A. Legal Authority for This Rulemaking

    This proposed rule is published under the authority of the Federal 
pipeline safety statutes (49 U.S.C. 60101 et seq.); Section 311 of the 
Clean Water Act; 33 U.S.C. 1321, as amended by the Oil Pollution Act 
(CWA); and E.O. 12777. E.O. 12777 delegated authority to the Secretary 
of Transportation, pursuant to 311(j)(5) of the CWA, to promulgate 
regulations requiring the owners and operators of transportation-
related onshore facilities to prepare and submit FRPs. E.O 12777 also 
ordered the Secretary of Transportation to review and approve the FRPs, 
in accordance with the CWA and promulgated regulations. The Secretary 
has delegated this authority under E.O. 12777 to the Administrator of 
PHMSA (49 CFR 1.97).
    Section 60102(a) authorizes the Secretary of Transportation to 
issue regulations governing the design, installation, inspection, 
emergency plans and procedures, testing, construction, extension, 
operation, replacement, and maintenance of pipeline facilities. 
Further, section 60102(l) of the Federal pipeline safety statutes 
states that the Secretary shall, to the extent appropriate and 
practicable, update incorporated industry standards that have been 
adopted as a part of the pipeline safety regulations. The Secretary has 
delegated the authority in section 60102 to the Administrator of PHMSA 
(49 CFR 1.97).

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    E.O. 12866, ``Regulatory Planning and Review'' (58 FR 51735; Oct. 
4, 1993), and DOT's regulatory policies and procedures require that 
PHMSA submit for review ``significant regulatory actions'' to the 
Office of Management and Budget (OMB). This NPRM is not a significant 
regulatory action under section 3(f) of E.O. 12866 and was therefore 
not reviewed by OMB. This NPRM also is not significant under the 
Department of Transportation's Policies and Procedures for Rulemaking 
(49 CFR part 5).
    E.O. 12866 requires agencies to design regulations ``in the most 
cost-effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' PHMSA 
anticipates that, if promulgated, this NPRM, would have economic 
benefits to the public and the regulated community by reducing 
unnecessary cost burdens without increasing risks to public safety or 
the environment. PHMSA estimates the proposed rule will result in 
annualized cost savings of approximately $273,242 per year, based on a 
7 percent discount rate. In support of this NPRM, PHMSA prepared an 
initial regulatory impact analysis (RIA) with estimated costs and 
benefits, which is available in the public docket.

C. Executive Order 13771--``Reducing Regulation and Controlling 
Regulatory Costs''

    This proposed rule is expected to be an E.O. 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the rule's Preliminary RIA, which is available in the 
docket.

D. Executive Order 13132--``Federalism''

    E.O. 13132 (64 FR 43255; Aug. 10, 1999) imposes certain 
requirements on Federal agencies formulating or implementing policies 
or regulations that preempt State law or that have federalism 
implications. This NPRM does not impose a substantial, direct effect on 
the States, the relationship between the National Government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. This NPRM also does not impose 
substantial direct compliance costs on State and local governments.
    The proposed rule could have preemptive effect because the pipeline 
safety laws, specifically 49 U.S.C. 60104(c), prohibit State safety 
regulation of interstate pipelines. Under the pipeline safety law, 
States have the ability to augment pipeline safety requirements for 
intrastate pipelines but may not approve safety requirements less 
stringent than those required by Federal law. A State may also regulate 
an intrastate pipeline facility not otherwise covered by PHMSA 
regulations. In this instance, the preemptive effect of the proposed 
rule is limited to the minimum level necessary to achieve the 
objectives of the pipeline safety laws under which the proposed rule is 
promulgated. Therefore, the consultation and funding requirements of 
E.O. 13132 do not apply.

E. Executive Order 13175--``Consultation and Coordination With Indian 
Tribal Governments''

    E.O. 13175, (65 FR 67249, Nov. 6, 2000), requires agencies to 
consider and consult with Tribal governments when formulating policies. 
PHMSA does not anticipate that this NPRM will significantly or uniquely 
affect Tribal governments or impose substantial direct compliance 
costs, so the funding and consultation requirements of E.O. 13175 do 
not apply. PHMSA invites Tribal communities and governments to comment 
on this NPRM.

F. Executive Order 13211--``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use''

    E.O. 13211 (66 FR 28355, May 22, 2001) requires agencies to submit 
``significant energy actions'' to OMB for review. This NPRM is not a 
``significant energy action'' under E.O. 13211 because it is unlikely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. Therefore, no additional analysis is necessary under 
E.O. 13211.

G. Executive Order 13272--``Regulatory Flexibility Act''

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as 
amended, requires Federal agencies to consider the impact of their 
regulatory proposals on small entities' concerns into account when 
developing, writing, publicizing, promulgating, and enforcing 
regulations. PHMSA determined that, if finalized, the regulations in 
this NPRM would not have a significant economic impact on a substantial 
number of small entities. An analysis of the potential economic impacts 
of the proposed rule on small entities is included in the Initial 
Regulatory Flexibility Analysis, which is available for public review 
and comment in the docket for this rulemaking.

H. Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) 
requires Federal agencies to minimize paperwork burden imposed on the 
American public by ensuring maximum utility and quality of information 
collected by the Federal

[[Page 21153]]

government. PHMSA estimates that the proposals in this rulemaking will 
impact the information collections described below.
    Based on the proposals in this rule, PHMSA will submit an 
information collection revision request to OMB for approval based on 
the requirements in this proposed rule. The information collection is 
contained in the pipeline safety regulations, 49 CFR parts 190 through 
199. The following information is provided for each information 
collection: (1) Title of the information collection; (2) OMB control 
number; (3) Current expiration date; (4) Type of request; (5) Abstract 
of the information collection activity; (6) Description of affected 
public; (7) Estimate of total annual reporting and recordkeeping 
burden; and (8) Frequency of collection. The information collection 
burden for the following information collections are estimated to be 
revised as follows:
    1. Title: Transportation of Hazardous Liquids by Pipeline: Record 
keeping and Accident Reporting.
    OMB Control Number: 2137-0047.
    Current Expiration Date: 01/31/2023.
    Abstract: This information collection covers general recordkeeping 
and the collection of information from hazardous liquid pipeline 
operators for accident reports. PHMSA estimates that due to the revised 
monetary damage threshold for reporting accidents operators will submit 
40 fewer hazardous liquid accident reports per year. Therefore, PHMSA 
expects to eliminate 40 responses and 40 hours to this information 
collection per year as a result of the provisions in the proposed rule.
    Affected Public: All hazardous liquid pipeline operators.
    Annual Reporting and Recordkeeping Burden:
    Total Annual Responses: 1,192 (1,232-40).
    Total Annual Burden Hours: 52,029 (52,429-400).
    Frequency of Collection: Regular.
    2. Title: Response Plans for Onshore Oil Pipelines.
    OMB Control Number: 2137-0589.
    Current Expiration Date: 06/30/2022.
    Abstract: This information collection covers operators' submission 
of facility response plans for onshore hazardous liquid pipeline 
facilities. While the proposed rule would not reduce the number of 
required plan submissions, it would streamline some of the plan 
requirements, thereby reducing the burden hours per response. The 
proposed rule would reduce burden hours associated with justifying harm 
categories or preparing duplicate federal facility response plans in 
addition to state mandated response plans. Eliminating the expectation 
to submit paper copies of facility response plans will reduce reporting 
costs but not paperwork burden hours.
    Affected Public: Onshore Hazardous Liquid Pipeline Operators.
    Annual Reporting and Recordkeeping Burden:
    Total Annual Responses: 540.
    Total Annual Burden Hours: 70,416 (73,980-3,564).
    Frequency of Collection: On occasion.

I. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) 
requires Federal agencies to prepare and consider estimates of the 
budgetary impact of regulations containing Federal mandates upon State, 
local, and Tribal governments before adopting such regulations. This 
NPRM imposes no unfunded mandates. If promulgated, this rule would not 
result in costs of $100 million, adjusted for inflation, or more in any 
one year to either State, local, or Tribal governments, in the 
aggregate, or to the private sector.

J. National Environmental Policy Act

    The National Environmental Policy Act (42 U.S.C. 4321 et. seq.) 
requires Federal agencies to analyze the impacts to the environment. 
PHMSA analyzed this NPRM in accordance with Section 102(2)(c) of the 
Council on Environmental Quality regulations (40 CFR parts 1500 through 
1508), and DOT Order 5610.1C. PHMSA has prepared a draft Environmental 
Assessment (EA) and has preliminarily determined this action will not 
significantly affect the quality of the human environment. A copy of 
the EA for this action is available in the docket. PHMSA invites 
comment on the environmental impacts of this proposed rulemaking.

K. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
the spring and fall of each year. The RIN contained in the heading of 
this document is a cross-reference for this action to the Unified 
Agenda.

List of Subjects

49 CFR Part 190

    Administrative practices and procedures, Penalties.

49 CFR Part 194

    Environmental protection, Hazardous materials transportation, 
Incorporation by reference, Oil pollution, Petroleum, Pipeline safety, 
Pipelines, Reporting and recordkeeping requirements, Transportation, 
Water pollution control.

49 CFR Part 195

    Hazardous materials transportation, Incorporation by reference, 
Integrity management, Pipeline safety, Pipelines.

    For the reasons provided in the preamble, PHMSA proposes to amend 
49 CFR parts 190, 194, and 195 as follows:

PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES

0
1. The authority citation for 49 CFR part 190 is revised to read as 
follows:

    Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.; and 49 
CFR 1.97

0
2. In Sec.  190.203, revise paragraph (e) and add paragraph (g) to read 
as follows:


Sec.  190.203   Inspections and investigations.

* * * * *
    (e) If a representative of the U.S. Department of Transportation 
inspects a pipeline facility or investigates an accident or incident 
involving a pipeline facility, the operator must make available to the 
representative, pursuant to paragraph (g) of this section, all records 
and information that pertain to the event in any way, including but not 
limited to integrity management plans and test results. The operator 
must provide all reasonable assistance in the inspection or 
investigation. Any person who obstructs an inspection or investigation 
by taking actions that were known or reasonably should have been known 
to prevent, hinder, or impede an investigation, without good cause will 
be subject to administrative civil penalties under this subpart.
* * * * *
    (g) When an operator submits records in response to a PHMSA 
inspection or investigation under this section, the operator must 
provide the records via hard copy or use an electronic or digital 
method such as email, data-storage device, or other means that comply 
with this section.
    (1) Any electronic system must permit PHMSA to download and print a 
copy of each record free of redactions, watermarks, or other 
alterations, from any U.S.-based internet access point. Any electronic 
system for delivering records to PHMSA must not include activation 
codes to begin an individual session, internet connectivity 
requirements to view downloaded documents, document tracking features, 
login time-out intervals shorter than one hour, or pre-access 
conditions.

[[Page 21154]]

    (2) Where an operator submits electronic records to PHMSA, the 
documents must be submitted in their original format unless PHMSA 
allows an alternative format. If the original format allows an operator 
to magnify a document while maintaining legibility; search a record for 
text; or search for specific records by name, date, or file type, then 
the operator may not alter the format of the record prior to submission 
in a way that limits the ability of PHMSA to use the same capabilities.
    (3) If an operator uses an electronic portal or other system to 
provide records to PHMSA, the operator must provide the PHMSA personnel 
conducting the inspection or investigation with a point of contact who 
is responsible for addressing reported problems with accessing the 
system or obtaining records using the system.
    (4) If PHMSA determines the form in which the records are provided 
would impede or otherwise prevent the efficient review of records in an 
inspection or investigation, or if the system is otherwise in conflict 
with PHMSA regulations, PHMSA may order an operator to deliver records 
in an alternative way. If PHMSA finds that an operator or a system 
alters records to remove functionality in a way that impedes the 
agency's review, PHMSA may require the operator to resubmit records in 
their original form.
0
3. In Sec.  190.343, revise paragraphs (a) and (b) to read as follows:


Sec.  190.343   Information made available to the public and request 
for protection of confidential commercial information.

* * * * *
    (a) Asking for protection of confidential commercial information. 
You may ask PHMSA to give confidential treatment to information you 
give to the agency by taking the following steps:
    (1) Mark ``CONFIDENTIAL'' on each page of the original document 
containing information that you would like to keep confidential; and
    (2) Explain in detail why the information you are submitting is 
confidential commercial information. General claims of confidentiality 
are not sufficient.
    (3)(i) Information submitted during a rulemaking proceeding or 
application for special permit or renewal. When submitting information 
for a rulemaking proceeding or application for special permit or 
renewal, the submitter must send to PHMSA, along with the original 
document, a second copy of the original document with the confidential 
commercial information redacted.
    (ii) Information provided for any other reason. When information is 
submitted for any reason other than that described in paragraph 
(a)(3)(i) of this section, the submitter may send to PHMSA, along with 
the original document, a second copy of the original document with the 
confidential commercial information redacted.
    (b) PHMSA decision. If PHMSA decides to disclose the information, 
PHMSA will review your request to protect confidential commercial 
information under the criteria set forth in the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, including following the consultation 
procedures set out in the Departmental FOIA regulations. 49 CFR 7.29. 
If PHMSA decides to disclose the information over your objections, we 
will notify you in writing at least five business days before the 
intended disclosure date.

PART 194--RESPONSE PLANS FOR ONSHORE OIL PIPELINES

0
4. The authority citation for 49 CFR part 194 continues to read as 
follows:

    Authority:  33 U.S.C. 1231, 1321(j)(1)(C), (j)(5) and (j)(6); 
sec. 2, E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; and 49 
CFR 1.53.

0
5. Revise Sec.  194.3 to read as follows:


Sec.  194.3   Applicability.

    (a) Except for the pipelines listed in paragraph (b) of this 
section, this part applies to an onshore oil pipeline that, because of 
its location, the operator determines that oil discharged from any 
point in the pipeline facility can be expected to adversely affect, 
within 12 hours after the initiation of the discharge, any navigable 
waters of the United States or adjoining shorelines, public drinking 
water intakes, or environmentally sensitive areas.
    (b) This part does not apply to an onsore oil pipeline whose line 
section is 6\5/8\ inches (168 millimeters) or less in outside nominal 
diameter and is 10 miles (16 kilometers) or less in length, where the 
operator determines that it is unlikely that the worst-case discharge 
from any point on the line section would adversely affect, within 4 
hours after the initiation of the discharge, any navigable waters, 
public drinking water intake, or environmentally sensitive areas.
0
6. Amend Sec.  194.5 as follows:
0
a. Add the definition for ``Area Contingency Plan (ACP)'' in 
alphabetical order;
0
b. Remove the definition of ``Barrel'' and add the definition for 
``Barrel (bbl)'' in its place;
0
c. Revise the definition of ``Contract or other approved means;''
0
d. Add the definition for ``Federal On-scene Coordinator (FOSC)'' in 
alphabetical order;
0
e. Remove the definitions of ``Major river;''
0
f. Add the definition for ``National Contingency Plan (NCP)'' in 
alphabetical order;
0
g. Remove the definition of ``On-Scene Coordinator (OSC);''
0
h. Revise the definition of ``Onshore oil pipeline facilities;''
0
i. Remove the definitions of ``Specified minimum yield strength'' and 
``Stress level;''
0
j. Add the definition for ``Tertiary Containment'' in alphabetical 
order; and
0
k. Remove the definition for ``Worst case discharge'' and add the 
definition for ``Worst-case discharge'' in its place.
    The additions and revisions read as follows:


Sec.  194.5   Definitions.

* * * * *
    Area Contingency Plan (ACP) means an Area Contingency Plan prepared 
in accordance with 33 U.S.C. 1321 (j)(4) and 40 CFR 300.210(c). This is 
a reference document prepared for the use of all agencies engaged in 
responding to environmental emergencies within a defined geographic 
area.
    Barrel (bbl) means a unit of volume equivalent to 42 United States 
gallons (159 liters) at 60 [deg]Fahrenheit (15.6[deg] Celsius).
* * * * *
    Contract or other PHMSA-approved means is:
    (1) A signed, active contract with an oil spill removal 
organization (OSRO) identifying and ensuring the availability of the 
necessary personnel or equipment within the stipulated response time in 
Sec.  194.115;
    (2) A written certification by the owner or operator that the 
necessary personnel or equipment can and will be made available by the 
owner or operator within the stipulated response times with supporting 
documentation to include a summary of any OSRO contracts, if 
applicable, with contract name, identifier and effective dates; or
    (3) Documentation of active membership in an OSRO, cooperative, or 
mutual aid agreement that ensures the owner or operator's access to the 
necessary response personnel or equipment within the stipulated times.
* * * * *
    Federal On-Scene Coordinator (FOSC) means the Federal official 
designated by the Administrator of the Environmental Protection Agency 
(EPA) or by the

[[Page 21155]]

Commandant of the United States Coast Guard (USCG) to coordinate and 
direct Federal response under subpart D of 40 CFR part 300.
* * * * *
    National Contingency Plan (NCP) means the National Oil and 
Hazardous Substances Pollution Contingency Plan codified in 40 CFR part 
300. The NCP provides the national-level organization structures and 
procedures for preparing for and responding to discharges of oil and 
other pollutants.
* * * * *
    Onshore oil pipeline facilities mean new and existing pipe, rights-
of-way and any equipment, facility, or building used in the 
transportation of oil located landward of the ``coast line,'' as 
defined under the Submerged Lands Act of 1953 (43 U.S.C. 1301(c)).
* * * * *
    Tertiary Containment means a dike, berm or another physical barrier 
that is outside of a ``secondary containment'' barrier.
    Worst-case discharge means the largest foreseeable discharge of 
oil, including discharge from fire or explosion. This volume will be 
determined by each pipeline operator for each response zone and is 
calculated according to Sec.  194.105.
0
7. Revise Sec.  194.7 to read as follows:


Sec.  194.7   Operating restrictions and interim operating 
authorization.

    (a) Each operator of a pipeline subject to this part must prepare 
and submit a response plan to PHMSA as provided in Sec.  194.119.
    (b) An operator of a pipeline for which a response plan is required 
under this part may not handle, store, or transport oil in that 
pipeline unless the operator has submitted a response plan meeting the 
requirements of this part.
    (c) An operator must operate its onshore pipeline facilities 
subject to this part in accordance with the response plan submitted to 
PHMSA.
    (d) The operator of a pipeline facility subject to this part may 
continue to operate the pipeline for two years after the date of 
submission of a response plan, pending approval of a plan or finding 
that a plan does not meet all of the requirements of this part, only if 
the operator has submitted the certification required by Sec.  
194.119(e).
0
8. Add Sec.  194.9 to read as follows:


Sec.  194.9   What documents are incorporated by reference partly or 
wholly in this part?

    Certain material is incorporated by reference into this part with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All approved material is available for 
inspection at Office of Pipeline Safety, Pipeline and Hazardous 
Materials Safety Administration, 1200 New Jersey Avenue SE, Washington, 
DC 20590, 202-366-4046 https://www.phmsa.dot.gov/pipeline/regs, and is 
available from the sources listed in paragraphs (a) through (c) of this 
section. It is also available for inspection at the National Archives 
and Records Administration (NARA). For information on the availability 
of this material at NARA, email [email protected] or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (a) American Petroleum Institute (API), 200 Massachusetts Avenue 
NW, Suite 1100, Washington, DC 20001, and phone: 202-682-8000, website: 
https://www.api.org/.
    (1) ANSI/API Recommended Practice 651, ``Cathodic Protection of 
Aboveground Petroleum Storage Tanks,'' 3rd edition, January 2007, 
(ANSI/API RP 651), IBR approved for Sec.  194.105(b).
    (2) API Recommended Practice 2350, ``Overfill Protection for 
Storage Tanks in Petroleum Facilities,'' 3rd edition, January 2005, 
(API RP 2350), IBR approved for Sec.  194.105(b).
    (3) API Standard 620, ``Design and Construction of Large, Welded, 
Low-Pressure Storage Tanks,'' 11th edition February 2008 (including 
addendum 1 (March 2009), addendum 2 (August 2010), and addendum 3 
(March 2012)), (API Std 620), IBR approved for Sec.  194.105(b).
    (4) API Standard 650, ``Welded Steel Tanks for Oil Storage,'' 11th 
edition, June 2007, effective February 1, 2012, (including addendum 1 
(November 2008), addendum 2 (November 2009), addendum 3 (August 2011), 
and errata (October 2011)), (API Std 650), IBR approved for Sec.  
194.105(b).
    (5) API Standard 653, ``Tank Inspection, Repair, Alteration, and 
Reconstruction,'' 3rd edition, December 2001, (including addendum 1 
(September 2003), addendum 2 (November 2005), addendum 3 (February 
2008), and errata (April 2008)), (API Std 653), IBR approved for Sec.  
194.105(b).
    (b) National Fire Protection Association (NFPA), 1 Batterymarch 
Park, Quincy, MA 02169, phone: 617-984-7275, website: https://www.nfpa.org/.
    (1) NFPA 30 (2012), ``Flammable and Combustible Liquids Code,'' 
including Errata 30-12-1 (9/27/11), and Errata 30-12-2 (11/14/11), 2012 
edition, copyright 2011, (NFPA 30), IBR approved for Sec.  194.105(b).
    (2) [Reserved]
    (c) United States Coast Guard (USCG), 2703 Martin Luther King Jr. 
Ave. SE, Washington, DC 20593, phone: 202-372-2231, and website: 
https://www.uscg.mil.
    (1) ``Guidelines for the U.S. Coast Guard Oil Spill Removal 
Organization Classification Program'' June 2019, IBR approved for Sec.  
194.107(c).
    (2) [Reserved]


Sec.  194.101   [REMOVED AND RESERVED]

0
9. Section 194.101 is removed and reserved.


Sec.  194.103   [REMOVED AND RESERVED]

0
10. Section 194.103 is removed and reserved.
0
11. Revise Sec.  194.105 to read as follows:


Sec.  194.105   Worst-case discharge.

    (a) Each operator must determine the worst-case discharge (WCD) for 
each of its response zones and provide the methodology, including all 
calculations, used to arrive at the volume.
    (b) The WCD of each response zone is the largest of the volumes 
calculated in paragraphs (b)(1) and (2) of this section, as applicable. 
If a response zone contains both tanks and pipelines, operators must 
perform and provide the calculations for both, but the WCD remains the 
largest of the two.
    (1) The WCD from a pipeline is calculated using one of the 
following methods:
    (i) The pipeline's maximum release time in hours, plus the maximum 
shutdown response time in hours (based on historic discharge data or in 
the absence of such historic data, the operator's best estimate), 
multiplied by the maximum flow rate expressed in barrels per hour 
(based on the maximum daily capacity of the pipeline), plus the largest 
line drainage volume after shutdown of the line section(s) in the 
response zone expressed in barrels (cubic meters); or
    (ii) A spill model that provides a description of the model in the 
methodology along with inputs and variables used by the model (to 
include, at a minimum: Pipe diameter, length, maximum flow rates, and 
detection and shutdown times). An operator must provide model outputs 
such as graphs or diagrams.
    (2) The capacity of the single largest tank or battery of tanks 
within a single secondary containment system, adjusted for the capacity 
or size of the secondary containment system, expressed in barrels. 
Operators may claim up to 75 percent prevention credits for breakout 
tank secondary containment and other specific spill prevention measures 
as follows:

[[Page 21156]]



------------------------------------------------------------------------
                                          Standard
                                      (incorporated by        Credit
        Prevention measure          reference,  see Sec.     (percent)
                                            194.9)
------------------------------------------------------------------------
(i) Secondary containment >100%...  NFPA 30.............              50
(ii) Built/repaired to API          API Std 620, API Std              10
 standards.                          650, API Std 653.
(iii) Overfill protection           API RP 2350.........               5
 standards.
(iv) Testing/cathodic protection..  API Std 650, ANSI/                 5
                                     API RP 651, API Std
                                     653.
(v) Tertiary containment or         NFPA 30 (Drainage/                 5
 drainage/treatment.                 Treatment).
------------------------------------------------------------------------

0
12. Revise Sec.  194.107 to read as follows:


Sec.  194.107   General response plan requirements.

    (a) Each response plan must include procedures and identify 
resources for responding to and mitigating a worst-case discharge from 
an onshore oil pipeline, including in adverse weather conditions. The 
operator must immediately carry out the provisions of the response plan 
whenever there is an oil discharge from the facility.
    (b) Each response plan must be consistent with the National Oil and 
Hazardous Substance Pollution Contingency Plan (NCP) and the 
appropriate Area Contingency Plan(s) (ACPs). The requirements for 
consistency with the NCP and appropriate ACPs include the following:
    (1) To be consistent with the NCP, a facility response plan must:
    (i) Demonstrate an operator's clear understanding of the function 
of the Federal response structure, by providing procedures to notify 
the National Response Center that reflect the lead role of the Federal 
On-Scene Coordinator in pollution response; and
    (ii) Establish provisions to ensure the protection of safety at the 
response site; and
    (2) To be consistent with the applicable ACP the plan must:
    (i) Identify and list the applicable ACPs;
    (ii) Identify environmentally sensitive areas;
    (iii) Establish procedures for obtaining permission for in-situ 
burning from the appropriate State or Federal authorities; and
    (iv) If applicable, establish the procedures for obtaining an 
expedited decision on the use of dispersants or other chemicals.
    (c) Each response plan must include:
    (1) A core plan consisting of--
    (i) An information summary as required in Sec.  194.113;
    (ii) Immediate notification procedures, including notification to 
the National Response Center in accordance with Sec.  195.52;
    (iii) Spill detection and mitigation procedures;
    (iv) The name, address, and telephone number of the OSRO, if 
appropriate;
    (v) Response activities;
    (vi) A list of response resources, unless the operator provides 
evidence of a signed, current contract with an OSRO classified by the 
U.S. Coast Guard as a WCD Tier 1 organization, as defined and described 
in 33 CFR part 154 and ``Guidelines for the U.S. Coast Guard Oil Spill 
Removal Organization Classification Program,'' for the operating 
environments (``River/Canal,'' ``Inland,'' or ``Great Lakes,'') 
applicable to the location of the pipeline;
    (vii) Names and telephone numbers of Federal, State, and local 
agencies which the operator expects to have pollution control 
responsibilities or support;
    (viii) Training procedures;
    (ix) Equipment testing, if an operator owns its response equipment;
    (x) Description of a drill and exercise program. An operator will 
satisfy the requirement for a drill and exercise program by following 
the current National Preparedness for Response Exercise Program (PREP) 
guidelines. An operator choosing not to follow PREP guidelines must 
have a drill and exercise program that is equivalent to current PREP 
guidelines. The operator must describe the drill program in the 
response plan and PHMSA's Office of Pipeline Safety (OPS) will 
determine if the program is equivalent to PREP;
    (xi) Procedures to provide Safety Data Sheets meeting 29 CFR 
1910.1200 to emergency responders and the FOSC within 6 hours of notice 
of a spill to the National Response Center; and
    (xii) Plan review and update procedures;
    (2) An appendix for each response zone that includes the 
information required in paragraphs (c)(1)(i) through (ix) of this 
section and the worst-case discharge calculations that are specific to 
that response zone. An operator submitting a response plan for a single 
response zone does not need to have a core plan and a response zone 
appendix. The operator of a single response zone must have a single 
summary in the plan that contains the required information in Sec.  
194.113; and
    (3) A description of the operator's incident command system 
including the functional areas of finance, logistics, operations, 
planning, and command. The plan must demonstrate that the operator's 
incident command system uses common terminology and has a manageable 
span of control, a clearly defined chain of command, and sufficient 
trained personnel to fill each position.
0
13. Revise Sec.  194.109 to read as follows:


Sec.  194.109   Submission of state response plans.

    (a) An operator may submit a response plan that complies with State 
law or regulation, if the State law or regulation requires a plan that 
provides equivalent or greater spill protection than a plan required 
under this part.
    (b) A plan submitted under this section must:
    (1) Have an information summary required by Sec.  194.113; and
    (2) Ensure through contract or other PHMSA-approved means the 
necessary private personnel and equipment to respond to a worst-case 
discharge or a substantial threat of such a discharge.
    (c) An operator may submit a response plan prepared to comply with 
State law or regulation if the operator adds a DOT annex to the plan 
that meets all additional requirements of this part not addressed in 
the State plan.
0
14. In Sec.  194.113:
0
a. Revise paragraphs (a)(2), (b) introductory text, and (b)(3) and (4);
0
b. Remove paragraph (b)(5);
0
c. Redesignate paragraph (b)(6) as paragraph (b)(5); and
0
d. Revise newly redesignated paragraph (b)(5).
    The revisions read as follows:


Sec.  194.113   Information summary.

    (a) * * *
    (2) A list of the response zone appendices for which the core plan 
is applicable.
    (b) The information summary for each response zone appendix or for 
plans with a single response zone, required in Sec.  194.107, must 
include:
* * * * *
    (3) The description or map of the response zone, including 
county(s) and state(s), for each response zone;
    (4) A list or map of line sections for each pipeline contained in 
the response zone, identified by milepost or survey station number, or 
other operator

[[Page 21157]]

designation. If an operator has submitted the PHMSA issued Facility 
Response Plan (FRP) identification number in its submission to the 
National Pipeline Mapping System (NPMS) in accordance with Sec.  191.29 
of this chapter, they may reference the NPMS to satisfy this 
requirement; and
    (5) The type of oil and volume of the worst-case discharge.
0
15. Revise Sec.  194.115 to read as follows:


Sec.  194.115   Response resources.

    (a) Each operator must identify and ensure the resources necessary 
to remove or mitigate to the maximum extent practicable, a worst-case 
discharge in accordance with 33 CFR part 154, appendix C. Each operator 
must provide documentation of these resources by contract or other 
PHMSA-approved means.
    (b) When determining the necessary resources for each response tier 
in accordance with paragraph (a) of this section, an operator must use 
the response times specified in paragraphs (b)(1) and (2) of this 
section, rather than the times referenced in 33 CFR part 154, appendix 
C. Tier 1, Tier 2, and Tier 3 are different levels of response 
resources; Tier 1 represents the resources available within 12 hours (6 
hours in a high-volume area) for an initial local response, while Tier 
3 represents national-level resources available within 60 hours (54 
hours in a high-volume area) that may be needed for spills with 
extensive impacts.

----------------------------------------------------------------------------------------------------------------
                                                                     Tier 1--        Tier 2--        Tier 3--
                                                                   initial local     regional        national
                                                                     response        response        response
----------------------------------------------------------------------------------------------------------------
(1) High-volume area............................................          6 hrs.         30 hrs.         54 hrs.
(2) All other areas.............................................         12 hrs.         36 hrs.         60 hrs.
----------------------------------------------------------------------------------------------------------------

0
16. Revise Sec.  194.119 to read as follows:


Sec.  194.119   Submission and approval procedures.

    (a) Each operator must submit an electronic copy of the response 
plan required by this part. The response plan must be submitted to 
[email protected] or other PHMSA-approved electronic means.
    (b) If PHMSA determines that a response plan does not meet all the 
requirements of this part, PHMSA will notify the operator of any 
alleged deficiencies. The operator has an opportunity to respond to 
PHMSA's notice within 30 days of issuance, including the opportunity 
for an informal conference, on any proposed plan revisions and an 
opportunity to correct any deficiencies.
    (c) An operator who disagrees with PHMSA's determination that a 
plan contains alleged deficiencies may petition PHMSA for 
reconsideration within 30 days from the date of receipt of PHMSA's 
notice. After considering all relevant material presented in writing or 
at an informal conference, PHMSA will notify the operator of its final 
decision. The operator must comply with the final decision within 30 
days of issuance unless PHMSA allows additional time.
    (d) PHMSA will approve the response plan if PHMSA determines that 
the response plan meets all requirements of this part. PHMSA may 
consult with the EPA or the USCG if a FOSC has concerns about the 
operator's ability to respond to a worst-case discharge.
    (e) If PHMSA has not approved a response plan for a pipeline 
described in this part, the operator may submit a certification to 
PHMSA that the operator has obtained, through contract or other 
approved means, the necessary personnel and equipment to respond to a 
worst-case discharge or a substantial threat of such a discharge to the 
maximum extent practicable. The certificate must be signed by the 
qualified individual or an appropriate corporate officer.
    (f) If PHMSA receives a request from an FOSC to review a response 
plan, PHMSA may provide a copy of the response plan to the FOSC. PHMSA 
may consider FOSC comments on response techniques, protecting fish, 
wildlife, and sensitive environments, and on consistency with the ACP. 
PHMSA remains the approving authority for the response plan.
0
17. In Sec.  194.121, revise paragraphs (a), (b)(1), (7), and (8), and 
(c) to read as follows:


Sec.  194.121   Response plan review and update procedures.

    (a) Each operator must update its response plan to address new or 
different operating conditions or information. In addition, each 
operator must review and resubmit its response plan in full at least 
every 5 years from the date of the last approval.
    (b) * * *
    (1) A new oil pipeline or an extension of an existing pipeline in a 
response zone where the new or extended pipeline is not covered by a 
previously approved plan prior to filling the pipeline with oil. An 
operator must include a list or map of the new oil pipeline or 
extension if the information is not available in NPMS per Sec.  
194.113(b)(4);
* * * * *
    (7) A change in the NCP or an ACP that has a significant impact on 
the equipment appropriate for response activities; and
    (8) Any other information relating to circumstances that may affect 
the full implementation of the plan.
    (c) If PHMSA determines that a change to a response plan does not 
meet the requirements of this part, PHMSA will notify the operator of 
any alleged deficiencies, and provide the operator an opportunity to 
respond to PHMSA's notice within 30 days, including an opportunity for 
an informal conference, to any proposed plan revisions and an 
opportunity to correct any deficiencies.
* * * * *
0
18. Amend appendix A to part 194 as follows:
0
a. In ``Response Plan: Section 1. Information Summary,'' revise 
paragraphs (a)(2) and (b)(3) and (4), remove paragraph (b)(5), 
redesignate paragraph (b)(6) as paragraph (b)(5), and revise newly 
redesignated paragraph (b)(5);
0
b. In ``Response Plan: Section 2. Notification Procedures,'' revise 
paragraph (a);
0
c. In ``Response Plan: Section 4. Response Activities,'' revise 
paragraph (d);
0
d. In ``Response Plan: Section 5. List of Contacts,'' revise the 
introductory text;
0
e. In ``Response Plan: Section 7,'' revise the heading and paragraphs 
(a) and (b)(2); and
0
f. In ``Response plan: Section 9. Response Zone Appendices,'' revise 
paragraphs (a), (d), (e), and (k)(2).
    The revisions read as follows:

Appendix A to Part 194--Guidelines for the Preparation of Response 
Plans

* * * * *

[[Page 21158]]

Response Plan: Section 1. Information Summary

* * * * *
    (a) * * *
    (2) A list of response zone appendices applicable to the core 
plan.
    (b) * * *
    (3) A description or map of the response zone, including 
county(s) and state(s);
    (4) A list of line sections contained in the response zone, 
identified by milepost or survey station number or other operator 
designation or statement that the PHMSA assigned FRP identification 
is provided in the National Pipeline Mapping System; and
    (5) The type of oil and volume of the worst-case discharge.
* * * * *

Response Plan: Section 2. Notification Procedures

* * * * *
    (a) Notification requirements that apply in each area of 
operation of pipelines covered by the plan, including notification 
to the National Response Center and applicable State or local 
requirements;
* * * * *

Response Plan: Section 4. Response Activities

* * * * *
    (d) Oil spill removal organizations available, through contract 
or other approved means, to respond to a worst-case discharge to the 
maximum extent practicable; and
* * * * *

Response Plan: Section 5. List of Contacts

    Section 5 would include the names and addresses of the following 
individuals or organizations, with 10-digit telephone numbers at 
which they can be contacted on a 24-hour basis:
* * * * *

Response Plan: Section 7. Drill and Exercise Procedures

* * * * *
    (a) Announced and unannounced exercises;
    (b) * * *
    (2) Exercises involving emergency actions by assigned operating 
or maintenance personnel and notification of the qualified 
individual on pipeline facilities that are normally unattended 
conducted quarterly.
* * * * *

Response Plan: Section 9. Response Zone Appendices.

* * * * *
    (a) The names and 10-digit telephone numbers of the qualified 
individuals;
* * * * *
    (d) Name, address, and telephone number of the OSRO;
    (e) Response activities and response resources including--
    (1) Equipment and supplies necessary to meet Sec.  194.115;
    (2) The trained personnel necessary to sustain operation of the 
equipment and to staff the OSRO and incident management team for the 
first 7 days of the response; and
    (3) Procedures to obtain permission to use applicable 
alternative response strategies, such as in-situ burning or 
dispersants, consistent with applicable ACPs;
* * * * *
    (k) * * *
    (2) Procedures to provide Safety Data Sheets meeting 29 CFR 
1910.1200 to emergency responders and the FOSC within 6 hours of a 
spill.

Appendix B to Part 194 [Amended]

0
19. In appendix B to part 194, add ``The Great Lakes'' to the list of 
``Other Navigable Waters'' in alphabetical order.

PART 195--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE

0
20. Revise the authority citation for part 195 to read as follows:

    Authority:  30 U.S.C. 185(w)(3), 49 U.S.C. 5103, 60101 et seq., 
and 49 CFR 1.97.

0
21. In Sec.  195.3, revise paragraphs (a) and (b) introductory text to 
read as follows:


Sec.  195.3   What documents are incorporated by reference partly or 
wholly in this part?

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. All approved material is available for 
inspection at Office of Pipeline Safety, Pipeline and Hazardous 
Materials Safety Administration, 1200 New Jersey Avenue SE, Washington, 
DC 20590, 202-366-4046, https://www.phmsa.dot.gov/pipeline/regs, and is 
available from the sources listed in this section. It is also available 
for inspection at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
email [email protected] or go to www.archives.gov/federal-register/cfr/ibr-locations.html.
    (b) American Petroleum Institute (API), 200 Massachusetts Ave NW, 
Suite 1100, Washington, DC 20001, and phone: 202-682-8000, website: 
https://www.api.org/.
* * * * *
0
22. In Sec.  195.50, revise paragraph (e) to read as follows:


Sec.  195.50   Reporting accidents.

* * * * *
    (e) Estimated property damage, including the cost of clean-up and 
recovery, value of lost product, and damage to the property of the 
operator or others, or both, exceeding $118,000.
0
23. In Sec.  195.52, revise paragraph (a)(3) to read as follows:


Sec.  195.52   Immediate notice of certain accidents.

    (a) * * *
    (3) Caused estimated property damage, including cost of cleanup and 
recovery, value of lost product, and damage to the property of the 
operator or others, or both, exceeding $118,000;
* * * * *
0
24. In Sec.  195.573, revise paragraph (c) to read as follows:


Sec.  195.573   What must I do to monitor external corrosion control?

* * * * *
    (c) Rectifiers and other devices. Any device listed in table 2 to 
this paragraph (c) must be periodically electrically checked to ensure 
that adequate amperage and voltage levels needed to provide cathodic 
protection are maintained. An operator may perform checks at the 
equipment's physical location or by remote monitoring. The second 
column of table 2 to this paragraph (c) prescribes minimum frequencies 
for checks required for devices listed in the first column.

                        Table 2 to Paragraph (c)
------------------------------------------------------------------------
                  Device                    Minimum frequency for checks
------------------------------------------------------------------------
Rectifier Reverse current switch Diode....  At least six times each
                                             calendar year, but with
                                             intervals not exceeding 2\1/
                                             2\ months between
                                             inspections.
Interference bond whose failure would       ............................
 jeopardize structural protection.
Other interference bond...................  At least once each calendar
                                             year, but with intervals
                                             not exceeding 15 months
                                             between inspections.
------------------------------------------------------------------------

    (1) Inspections may be done through remote measurement or through 
an onsite inspection of the device.
    (2) Each remotely monitored rectifier must be physically inspected 
for continued safe and reliable operation whenever cathodic protection 
tests occur pursuant to paragraph (a)(1) of this section.
* * * * *
0
25. Amend appendix C to part 195 as follows:
0
a. Revise the introductory text and paragraphs I.B(3) and (6) through 
(11);
0
b. Remove paragraph I.B(12); and
0
c. Revise paragraphs II.A(11), (15), and (17).
    The revisions read as follows:

Appendix C to Part 195--Guidance for Implementation of an Integrity 
Management Program

    This appendix gives guidance to help an operator implement 
integrity management

[[Page 21159]]

program requirements in Sec. Sec.  195.450 and 195.452. This 
appendix is intended to give advice to operators on how to implement 
the requirements of the integrity management requirements. This 
appendix is not legally binding and conformity with this appendix is 
voluntary only. However, if an operator incorporates parts of this 
appendix into its integrity management program, the operator must 
then comply with those provisions. Guidance is provided on:
    (1) Information an operator may use to identify a high 
consequence area and factors an operator can use to consider the 
potential impacts of a release on an area;
    (2) Risk factors an operator can use to determine an integrity 
assessment schedule;
    (3) Safety risk indicator tables for leak history, volume or 
line size, age of pipeline, and product transported, an operator may 
use to determine if a pipeline segment falls into a high, medium or 
low risk category;
    (4) Types of internal inspection tools an operator could use to 
find pipeline anomalies;
    (5) Measures an operator could use to measure an integrity 
management program's performance; and
    (6) Types of records an operator will have to maintain.
    (7) Types of conditions that an integrity assessment may 
identify that an operator should include in its required schedule 
for evaluation and remediation.
    I. * * *
    B. * * *
    (3) Crossing of farm tile fields. Using available information 
and knowledge, an operator should consider the possibility of 
spillage in a field following a drain tile into a waterway.
* * * * *
    (6) Operating conditions of the pipeline (pressure, flow, mode 
of operation, etc.).
    (7) The hydraulic gradient of the pipeline.
    (8) The diameter of the pipeline, the potential release volume, 
and the distance between the isolation points.
    (9) Potential physical pathways between the pipeline and the 
high-consequence area.
    (10) Response capability (time to respond, nature of response).
    (11) Potential of terrain and waterways to be flooded and serve 
as a conduit to a high consequence area.
    II. * * *
    A. * * *
    (11) Location related to potential flooding or ground movement 
(e.g., flood zones, seismic faults, rock quarries, and coal mines); 
climatic (permafrost causes settlement--Alaska); geologic 
(earthquakes, landslides or subsidence areas).
* * * * *
    (15) Operating conditions of the pipeline (pressure, stress 
levels, flow rate, etc.). Consider if the pipeline has been exposed 
to an operating pressure exceeding the established maximum operating 
pressure.
* * * * *
    (17) Physical support of the pipeline segment such as by a cable 
suspension bridge. An operator should look for stress indicators on 
the pipeline (strained supports, inadequate support at towers), 
atmospheric corrosion, vandalism, and other obvious signs of 
improper maintenance.
* * * * *

    Issued in Washington, DC on March 13, 2020, under authority 
delegated in 49 CFR 1.97.
Alan K. Mayberry,
Associate Administrator for Pipeline Safety.
[FR Doc. 2020-05721 Filed 4-15-20; 8:45 am]
BILLING CODE 4910-60-P