Pipeline Safety: Unusually Sensitive Areas for the Great Lakes, Coastal Beaches, and Certain Coastal Waters, 73173-73186 [2021-27751]
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Federal Register / Vol. 86, No. 245 / Monday, December 27, 2021 / Rules and Regulations
wakefulness of the watchmen required
in paragraph (a) of this section. Vessels
with a keel laid date after March 28,
2022, must include plans for the
monitoring device(s) within the plan
submissions required in 46 CFR
177.202. The Coast Guard will work
with the vessel operators to determine a
reasonable implementation schedule
once the plans are accepted. The
monitoring device(s) must:
(1) Ensure the wakefulness of the
crew in the event that the watchman
required in paragraph (a) of this section
is unresponsive;
(2) Remain operable during the
nighttime watch; and
(3) Be arranged to ensure proper
coverage of the passenger
accommodation spaces, common areas,
and spaces with potential fire hazards.
■ 27. Amend § 185.420 as follows:
■ a. Redesignate paragraphs (b) and (c)
as paragraphs (c) and (d);
■ b. Add new paragraph (b); and
■ c. In newly redesignated paragraph
(c):
■ i. Add the text ‘‘, monthly,’’ after the
word ‘‘initial’’; and
■ ii. Remove the text ‘‘paragraph (a)’’
and add, in its place, the text
‘‘paragraphs (a) and (b)’’.
The addition reads as follows:
§ 185.420
Crew training.
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(b) For a vessel described by 46 CFR
175.110(c), the training program in
paragraph (a) of this section must
address firefighting proficiency and
must include, but need not be limited
to—
(1) Training in the use and location of
firefighting equipment and general
firefighting knowledge, including:
(i) Location of firefighting appliances
and emergency escape routes;
(ii) Types and sources of ignition;
(iii) Flammable materials, fire hazards
and spread of fire;
(iv) The need for constant vigilance;
(v) Actions to be taken on board;
(vi) Fire and smoke detection and
automatic systems on board; and
(vii) Classification of fire and
applicable extinguishing agents.
(2) The drills required by § 185.524,
including fire location and fire type; and
(3) Emergency egress training for each
member of the crew, to occur for all
members of the crew—
(i) At least monthly while such
members are employed on board the
vessels; and
(ii) Each time a crew member joins the
crew of such vessel.
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■
28. Add § 185.507 to read as follows:
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§ 185.507
Passenger egress drills.
(a) The master of a vessel described by
46 CFR 175.110(d) must conduct
passenger emergency egress drills from
the passengers’ assigned overnight
accommodation spaces prior to
beginning an excursion with new
passengers.
(1) If the passengers are not assigned
an overnight accommodation space, the
master of a vessel described by 46 CFR
175.110(d) must conduct passenger
emergency egress drills from an
accommodation space prior to
beginning an excursion with new
passengers.
(2) For the purposes of this section,
excursion includes anytime the vessel
gets underway, or anytime passengers
remain overnight on the vessel.
(b) [Reserved]
29. Delayed indefinitely, amend
§ 185.507 by adding paragraph (b) to
read as follows:
■
§ 185.507
Passenger egress drills.
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(b) Passenger egress drills must be
logged or otherwise documented for
review by the Coast Guard upon request.
The drill entry must include the
following information:
(1) Date and time of the drill; and
(2) Number of drill participants.
■
30. Add § 185.515 to read as follows:
§ 185.515
Passenger safety bill.
(a) [Reserved]
(b) Each passenger safety bill required
by this section must list:
(1) The embarkation station and the
number and location of the survival
craft to which each passenger is
assigned, if applicable;
(2) The fire and emergency signal and
the abandon ship signal;
(3) Essential action that must be taken
in an emergency; and
(4) If immersion suits are provided for
passengers, the location of the suits and
illustrated instructions on the method of
donning the suits.
31. Delayed indefinitely, amend
§ 185.515 by adding paragraph (a) to
read as follows:
■
§ 185.515
Passenger safety bill.
(a) On vessels described by 46 CFR
175.110(d), a passenger safety bill must
be posted by the master in each cabin
or stateroom, and in passenger
accommodation spaces.
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73173
Dated: December 15, 2021.
J.W. Mauger,
Rear Admiral, U.S. Coast Guard, Assistant
Commandant for Prevention Policy.
[FR Doc. 2021–27549 Filed 12–23–21; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 195
[Docket No. PHMSA–2017–0152; Amdt. No.
195–104]
RIN 2137–AF31
Pipeline Safety: Unusually Sensitive
Areas for the Great Lakes, Coastal
Beaches, and Certain Coastal Waters
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Interim final rule.
AGENCY:
PHMSA is amending the
pipeline safety regulations to explicitly
state that certain coastal waters, the
Great Lakes, and coastal beaches are
classified as unusually sensitive areas
for the purpose of compliance with the
hazardous liquid integrity management
regulations. This amendment
implements mandates contained in the
Protecting our Infrastructure of
Pipelines and Enhancing Safety (PIPES)
Act of 2016, as amended by the PIPES
Act of 2020. A hazardous liquid
pipeline that could affect these newly
designated areas must be included in an
operator’s integrity management
program.
SUMMARY:
The effective date of the interim
final rule is February 25, 2022. Submit
comments by February 25, 2022.
ADDRESSES: You may submit comments,
identified by Docket No. PHMSA–2017–
0152, by any of the following methods:
• E-Gov Web: https://
www.regulations.gov. This site allows
the public to enter comments on any
Federal Register notice issued by any
agency. Follow the online instructions
for submitting comments.
• Mail: Docket Management System:
U.S. Department of Transportation, 1200
New Jersey Avenue SE, West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery: DOT Docket
Management System: West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE, between 9:00
a.m. and 5:00 p.m. ET, Monday through
Friday, except Federal holidays.
DATES:
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• Fax: 202–493–2251.
• Instructions: Identify the Docket
No. PHMSA–2017–0152, at the
beginning of your comments. If you
submit your comments by mail, submit
two copies. If you wish to receive
confirmation that PHMSA received your
comments, include a self-addressed
stamped postcard. Internet users may
submit comments at https://
www.regulations.gov.
• Note: All comments received are
posted without edits to https://
www.regulations.gov, including any
personal information provided. Please
see the Privacy Act heading below.
• Privacy Act: In accordance with 5
U.S.C. 553(c), DOT solicits comments
from the public to better inform its
rulemaking process. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to www.regulations.gov, as
described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at www.dot.gov/privacy.
• Confidential Business Information:
Confidential Business Information (CBI)
is commercial or financial information
that is both customarily and actually
treated as private by its owner. Under
the Freedom of Information Act (5
U.S.C. 552), CBI is exempt from public
disclosure. If your comments in
response to this notice contain
commercial or financial information
that is customarily treated as private,
that you actually treat as private, and
that is relevant or responsive to this
notice, it is important that you clearly
designate the submitted comments as
CBI. Pursuant to 49 Code of Federal
Regulations (CFR) 190.343, you may ask
PHMSA to provide confidential
treatment to information you give to the
agency by taking the following steps: (1)
Mark each page of the original
document submission containing CBI as
‘‘Confidential;’’ (2) send PHMSA a copy
of the original document with the CBI
deleted along with the original,
unaltered document; and (3) explain
why the information you are submitting
is CBI. Submissions containing CBI
should be sent to Sayler Palabrica, 1200
New Jersey Avenue SE, DOT: PHMSA—
PHP–30, Washington, DC 20590–0001.
Any commentary PHMSA receives that
is not specifically designated as CBI will
be placed in the public docket.
• Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov. Follow the online
instructions for accessing the dockets.
Alternatively, you may review the
documents in person at the street
address listed above.
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FOR FURTHER INFORMATION CONTACT:
Sayler Palabrica by phone at 202–744–
0825 or via email at sayler.palabrica@
dot.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Hazardous Liquid Integrity Management
III. National Pipeline Mapping System
IV. Consequences of Hazardous Liquid
Pipeline Spills in Coastal Areas and the
Great Lakes
V. Legislative and Administrative History
VI. Summary of Amendments
VII. Effective Date and Comments
VIII. Good Cause Exception
IX. Regulatory Analyses and Notices
I. Introduction
PHMSA issues this interim final rule
(IFR) to satisfy mandates within the
PIPES Act of 2016 (Pub. L. 114–183) and
the PIPES Act of 2020 (Pub. L. 116–260)
to expand application of PHMSA’s
integrity management (IM) requirements
to approximately 2,905 additional miles
of hazardous liquid and carbon dioxide
pipelines 1 located within or that could
affect the Great Lakes, coastal beaches,
or ‘‘certain coastal waters.’’ The IFR will
provide enhanced protection from
hazardous liquid pipeline accidents
similar to the 2010 Marshall, MI and the
2015 Refugio Beach, CA oil spills, and
ensure that events like the anchor strike
that damaged Enbridge’s Line 5 in the
Straits of Mackinac are promptly
identified and remediated before they
result in environmental damage.
Hazardous liquid pipelines that could
affect a high consequence area (HCA)
are subject to additional safety
requirements. Specifically, such
pipelines must be included in an IM
program. An HCA is defined in 49 CFR
195.450 as a commercially navigable
waterway, a high population area, an
other populated area, or an unusually
sensitive area (USA) as defined in
§ 195.6. Section 195.6 identifies two
types of USAs, ‘‘USA drinking water
resources’’ and ‘‘USA ecological
resources.’’ Every USA is, therefore, also
an HCA. Under § 195.452, an operator of
a hazardous liquid pipeline that is
located in a USA, or in an area where
a release could affect a USA, is required
to comply with IM requirements.
Section 19 of the PIPES Act of 2016
amended 49 U.S.C. 60109(b)(2) and
directed PHMSA to revise the definition
of a USA in § 195.6(b) to explicitly state
that the Great Lakes, coastal beaches,
and marine coastal waters are USA
ecological resources. Congress further
clarified this mandate in Section 120 of
1 Hereinafter, references to ‘‘hazardous liquid’’
pipelines will refer to both hazardous liquid and
carbon dioxide pipelines for simplicity, as they are
both governed by 49 CFR part 195.
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the PIPES Act of 2020 (division R of the
Consolidated Appropriations Act of
2021, Pub. L. 116–260). With this
clarification, the PIPES Act of 2020
introduced and defined the term
‘‘certain coastal waters’’ to replace the
undefined term ‘‘marine coastal
waters.’’ Congress defined ‘‘certain
coastal waters’’ as the ‘‘territorial sea of
the United States; the Great Lakes and
their connecting waters; and the marine
and estuarine waters of the United
States up to the head of tidal influence.’’
Furthermore, Congress defined the term
‘‘coastal beach’’ as ‘‘any land between
the high- and low-water marks of certain
coastal waters.’’ This IFR incorporates
these terms and the statutory definitions
into § 195.6, as directed by Congress.
PHMSA maintains a map of HCAs,
excluding proprietary or security
sensitive information, in the National
Pipeline Mapping System (NPMS)
pursuant to 49 U.S.C. 60132(d). PHMSA
intends to map ‘‘certain coastal waters’’
and ‘‘coastal beaches’’ as a single data
layer within the NPMS. PHMSA will
generate this map based on a
combination of geographic information
system (GIS) data from the National
Oceanic and Atmospheric
Administration (NOAA) Clean Water
Act 2 dataset, U.S. Environmental
Protection Agency (EPA) Estuary Data
Mapper,3 and the NOAA Sea Level Rise
Viewer.4 Each of these datasets are
generated by expert scientific agencies
of the Federal government and are
available on the internet for public
viewing. These datasets are further
described in section VI of this IFR.
PHMSA seeks comments on the use of
these datasets to represent the location
of the statutory definitions of ‘‘certain
coastal waters’’ and ‘‘coastal beaches’’ in
the NPMS.
While the primary effect of the IFR is
expanding the hazardous liquid
pipeline mileage subject to IM program
requirements, defining new USAs also
affects the requirements for certain
pipelines in rural areas. Proximity to a
USA also determines if an onshore rural
gathering line is a regulated rural
gathering line subject to safety
requirements described in § 195.11(b).
Additionally, a pipeline categorized as a
2 NOAA Office for Coastal Management, ‘‘Clean
Water Act Dataset’’ (Nov. 9, 2016), https://
catalog.data.gov/dataset/clean-water-act (last
accessed October 13, 2021).
3 EPA, ‘‘High End Scientific Computing—Estuary
Data Mapper Dataset’’ (Dec. 7, 2020), https://
www.epa.gov/hesc/estuary-data-mapper-edm (last
accessed June 21, 2021).
4 NOAA Office for Coastal Management, ‘‘Sea
Level Rise Viewer Dataset’’ (July 2020), https://
catalog.data.gov/dataset/noaa-digital-coast-sealevel-rise-and-coastal-flooding-impacts-viewer (last
accessed October 13, 2021).
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Category 3 rural low-stress pipeline
could become a Category 1 or Category
2 pipeline if it is located within 1⁄2 mile
of a USA.
PHMSA is not changing the definition
of ‘‘offshore’’ in §§ 192.3 or 195.2 as a
part of this IFR. Those sections define
‘‘offshore’’ to mean beyond the line of
ordinary low water along that portion of
the coast of the United States that is in
direct contact with the open seas and
beyond the line marking the seaward
limit of inland waters. The new USAs
defined in § 195.6 do not affect the
definition of ‘‘offshore’’ in §§ 192.3 or
195.2. Even if data used to map the new
USAs refer to ‘‘offshore’’ areas as
defined or designated by a separate
statute, such as the Submerged Lands
Act (43 U.S.C. 1301 et seq.), the
regulatory definition of ‘‘offshore’’ in
§§ 192.3 and 195.2 is distinct from these
other statutes and will remain
unchanged. In other words, the
definitions of ‘‘coastal beach’’ and
‘‘certain coastal waters’’ exist
independently of the definition of
‘‘offshore’’ in §§ 192.3 or 195.2. A
pipeline could be located within certain
coastal waters and be either ‘‘onshore’’
or ‘‘offshore’’ under §§ 192.3 and 195.2.
Accordingly, altering the definition of
‘‘offshore’’ is beyond the scope of this
IFR.
II. Hazardous Liquid Integrity
Management
The objective of the hazardous liquid
IM requirements at § 195.452 is to
reduce the risks of pipeline spills in
areas where a release could have
significant consequences. In a series of
final rules published between 2000 and
2002, PHMSA’s predecessor agency, the
Research and Special Programs
Administration, promulgated
regulations that defined HCAs and
required operators to develop and
implement IM programs for each
hazardous liquid pipeline that could
affect an HCA in the event of a release.
HCAs are defined in § 195.450 and
represent areas where a release could
have significant adverse consequences
to human health and safety, the
environment, and commercial
navigation. The IM requirements that
operators must implement to protect
HCAs are specified in § 195.452.
IM requirements for hazardous liquid
pipelines were implemented in four
final rules. The first final rule was
‘‘Pipeline Integrity Management in High
Consequence Areas (Hazardous Liquid
Operators with 500 or More Miles of
Pipeline),’’ 5 followed by ‘‘Areas
Unusually Sensitive to Environmental
Damage,’’ 6 and ‘‘Pipeline Integrity
Management in High Consequence
Areas (Hazardous Liquid Operators with
Less Than 500 Miles of Pipelines).’’ 7
PHMSA made updates to these
requirements in a 2019 final rule titled
‘‘Safety of Hazardous Liquid
Pipelines.’’ 8 These rules established a
regulatory framework focused on risk
identification, assessment, and
mitigation. PHMSA’s IM regulations
require operators of pipelines located in
areas where a release could affect an
HCA to take additional steps to address
threats to the integrity of those pipelines
by operating and maintaining those
pipelines in accordance with an
effective IM program. These measures
require operators to devote additional
analysis, assessment, and remediation
resources to protect HCAs from pipeline
releases that could adversely affect
human health and safety, cause
environmental damage, and disrupt
commercial navigation.
A. High Consequence Areas
Section 195.450 of the existing
hazardous liquid pipeline safety
regulations defines an HCA as: (1) A
commercially navigable waterway,
which means a waterway where a
substantial likelihood of commercial
navigation exists; (2) a high population
area, which means an urbanized area, as
defined and delineated by the U.S.
Census Bureau, that contains 50,000 or
more people and has a population
density of at least 1,000 people per
square mile; (3) an other populated
area, which means a place, as defined
and delineated by the U.S. Census
Bureau, that contains a concentrated
population, such as an incorporated or
unincorporated city, town, village, or
other designated residential or
commercial area; or (4) an unusually
sensitive area, which is defined in
§ 195.6 to be a drinking water or
ecological resource area that is
unusually sensitive to environmental
damage from a hazardous liquid
pipeline release. Section 195.452(d)(2)
requires operators to incorporate newly
identified HCAs into their baseline
assessment plans within one year from
the date the area is identified, and
complete a baseline assessment of any
pipeline that could affect the newly
identified HCA within 5 years from the
date the area is so designated.
B. Unusually Sensitive Areas
Section 195.6 defines a USA as a
drinking water or ecological resource
6 64
FR 9532 (Feb. 8, 2001).
FR 2136 (Jan. 16, 2002).
8 84 FR 52260 (Oct. 1, 2019).
7 67
5 65
FR 75377 (Dec. 1, 2000).
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area that is unusually sensitive to
environmental damage from a
hazardous liquid pipeline release. The
regulatory definition of USA elaborates
that a drinking water resource generally
refers to a source of drinking water (e.g.,
a surface water intake, a source water
protection area for wells, or a recharge
area for a karst aquifer) for a community
water system, or a non-transient, noncommunity water system (e.g., a school
or factory) with no adequate alternative
supply of drinking water. The definition
of a USA ecological resource includes
areas containing one or more critically
imperiled species or ecological
communities; a multi-species
assemblage area; a migratory waterbird
concentration area; and an area
containing an imperiled, threatened,
endangered species, depleted marine
mammal species, or an imperiled
ecological community containing
species with a limited range.
C. Integrity Management Requirements
As described above, every USA is an
HCA, and a hazardous liquid pipeline
that could affect an HCA must be
included in an operator’s hazardous
liquid IM program. Section 195.452(b)
requires an operator to develop and
follow a written IM program. Section
195.452(f) requires that a hazardous
liquid pipeline IM program include
each of the following elements:
• A process for identifying pipelines
that could affect an HCA, including
USAs (see §§ 195.6, 195.450, Appendix
C to part 195, ‘‘Guidance for
Implementation of an Integrity
Management Program’’);
• A plan for scheduling and
performing baseline assessments
(§ 195.452(c));
• An analysis of pipeline safety risks
that integrates all available information
about pipeline integrity and potential
consequences (§ 195.452(g));
• Criteria for performing remedial
action in response to pipeline integrity
issues identified during assessments or
other analysis (§ 195.452(h));
• A continuous process for
scheduling, performing, and
interpreting integrity assessments and
evaluations (§ 195.452(j));
• Identification of ‘‘preventative and
mitigative measures’’ to protect the
pipeline from identified integrity threats
(§ 195.452(i));
• Procedures for evaluating the
effectiveness of the IM program
(§ 195.452(k)); and
• A process to ensure integrity
assessment results and information
analysis is performed by qualified
personnel (§ 195.452(f)(8)).
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When an operator determines that a
pipeline segment could affect an HCA,
it must integrate information about that
segment, including information about
potential consequences, into its risk
analysis and add the segment to the
baseline assessment plan. The minimum
data attributes operators are required to
consider are listed in § 195.452(g)(1).
This includes information about the
pipeline itself; excavation damage
threats; information about the potential
impacts of a release on an HCA; and
data from integrity assessments,
cathodic protection surveys, patrols,
and other maintenance and surveillance
tasks. This analysis is used to prioritize
and schedule integrity assessments and
identify preventative and mitigative
measures.
If a pipeline segment could affect a
newly identified USA as a result of this
IFR, the operator must include that
segment in their IM program and
periodically assess the integrity of that
segment. Section 195.452(d)(2) requires
an operator to add pipelines that cross
or could affect new HCAs into their
baseline assessment plan within 1 year
of obtaining that new HCA information
and complete the baseline assessment
within 5 years of that date. Section
195.452(c)(1)(i) requires that the
baseline assessment be done with an inline inspection tool unless construction
or operational factors make an in-line
inspection impracticable. The operator
must select an in-line inspection tool, or
combination of tools, capable of
detecting, at a minimum, corrosion and
dents. If cracking is identified as a
probable integrity threat, then the
operator must select a tool or
combination of tools capable of
detecting cracks. If an in-line inspection
is impracticable, an operator may
perform a baseline assessment using a
pressure test, external corrosion direct
assessment, or other technology with
advance notification to PHMSA.
After the baseline assessment, a
segment that could affect an HCA must
be reassessed regularly. The assessment
schedule for both the baseline
assessment and reassessments must be
established by considering all risk
factors, including, at a minimum, each
of the factors listed in § 195.452(e).
Section 195.452(j)(3) requires operators
to continually assess the pipeline’s
integrity at no greater than 5-year
intervals, not to exceed 68 months,
except as provided in § 195.452(j)(4). If
the operator detects a defect during an
assessment, the operator must remediate
it pursuant to the requirements in
§ 195.452(h) and the operator’s
procedure. That paragraph requires an
operator to establish repair criteria that
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meet minimum standards for
remediation methods and repair of
various repair conditions.
In addition to assessment and repair
requirements, operators must use a risk
analysis to identify preventative and
mitigative measures necessary to avert
negative impacts in HCAs. Examples of
preventative and mitigative measures
identified in § 195.452(i) include
adopting damage prevention best
practices, improving cathodic protection
monitoring, shortening inspection
intervals, installing emergency flow
restricting devices,9 installing leak
detection equipment, or providing
enhanced response training to operator
personnel and emergency responders.
Operators must implement preventative
and mitigative measures based on an
analysis of the likelihood of a pipeline
release and the potential consequences
of the release. The minimum elements
of this risk analysis are described in
§ 195.452(i)(2). Pipelines that could
affect an HCA must have a means to
detect leaks on the pipeline system(s)
pursuant to § 195.452(i)(3), though
§§ 195.134 and 195.444 require leak
detection systems on hazardous liquid
pipeline systems outside of HCAs as
well.
III. National Pipeline Mapping System
A. NPMS Introduction
PHMSA maintains a map of HCAs in
the NPMS pursuant to 49 U.S.C.
60132(d). The NPMS includes GIS
resources that allow users to view
pipeline maps and pipeline operations
information, depending on the profile of
the user. The NPMS contains locations
and information about gas transmission
and hazardous liquid pipelines and
liquefied natural gas (LNG) plants under
PHMSA jurisdiction. The NPMS also
contains hazardous liquid pipeline HCA
data 10 and voluntarily submitted
breakout tank 11 data. NPMS data for
hazardous liquid pipeline facilities
include geospatial data, attribute data
for pipeline segments, metadata, and
operator contact information. Operators
are required to submit NPMS data
annually or review their current data in
the NPMS to confirm it is still accurate
pursuant to § 195.61. PHMSA processes
9 A check valve or a remote control valve as
defined in § 195.450.
10 While HCAs for hazardous liquid pipelines are
defined areas under § 195.450, HCAs for gas
pipelines are identified under § 192.903 based on
the location, diameter, and maximum allowable
operating pressure of the pipeline and the
pipeline’s proximity to nearby structures. See also
49 U.S.C. 60109(b).
11 A breakout tank is a storage tank in a hazardous
liquid pipeline system used as part of the
transportation of hazardous liquids by pipeline. See
§ 195.2.
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operator data submissions year-round
and the online mapping applications
and resources are updated
approximately every other month. These
data and submission requirements are
described in further detail in § 195.61
and the Operator Standards Manual,
available on the NPMS web page.12
The NPMS contains information from
over 1,500 operators totaling over
225,000 miles of hazardous liquid
pipelines and over 310,000 miles of gas
transmission pipelines. Operators also
voluntarily provided information on the
location of 3,476 breakout tanks out of
8,412 reported in annual reports for the
2019 reporting year. PHMSA and others
use NPMS data for a wide variety of
purposes, including emergency
response, inspection planning, risk
assessment, regulatory support, spatial
analysis, map production, public
awareness, and education.
B. NPMS Access to Geospatial Data
The NPMS website is structured into
three pages by user-type to facilitate
access to available information and
resources. The pages include: (1) The
Government Official Portal, intended for
government officials at the local, State,
or Federal level, including emergency
responders and tribal governments; (2)
the Operator Portal, intended for
employees of pipeline operators who
contribute data to the NPMS, including
operators of gas transmission or
hazardous liquid pipelines, breakout
tanks, and LNG plants under PHMSA
jurisdiction; 13 and (3) the General
Public Portal, available for members of
the public. The General Public Portal
includes information about gas
transmission and hazardous liquid
pipelines, an operator directory, and the
NPMS Public Map Viewer for exploring
or printing NPMS maps on a per-county
basis. The General Public Portal also has
maps of HCAs. This includes the
location of high-population areas
derived from U.S. Census Bureau data
and commercially navigable waterways
from the U.S. Army Corps of Engineers’
National Waterway Network. As an
initial step to implement Section 19 of
the PIPES Act of 2016, PHMSA, in 2019,
incorporated GIS data for the Great
Lakes USA ecological resource to the
NPMS based on the definition of the
Great Lakes from 33 U.S.C. 1268 and
12 PHMSA, ‘‘National Pipeline Mapping System
Standards for Pipeline, Liquefied Natural Gas and
Breakout Tank Farm Operator Submissions’’ (Oct.
2017). https://www.npms.phmsa.dot.gov/
Documents/Operator_Standards.pdf. (last accessed
June 21, 2021).
13 Operators can also use the Operator Portal to
access information regarding NPMS data
submission requirements, procedures, and HCA GIS
data layers to support IM program planning.
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geospatial information from NOAA’s
U.S. State Submerged Lands dataset.14
NOAA updates this dataset as needed to
ensure accuracy in depicting Great
Lakes shorelines and last updated the
dataset in 2016.
In addition to the three user-type
pages discussed above, PHMSA has also
developed the Pipeline Information
Management Mapping Application
(PIMMA). PIMMA is a passwordprotected, web-based mapping
application limited to government
officials and pipeline operators. Each
government user only has access to the
maps of pipelines in their area of
jurisdiction, and each operator user only
has access to maps of the pipelines they
operate. Government officials or
operators can apply for PIMMA access
or log in to PIMMA from the NPMS
homepage. Information on how to use
and access PIMMA is available within
the Government Official and Operator
Portals.
Government officials and operators
can request access to pipeline facility
GIS data from the NPMS for use in their
own GIS. This option allows
government officials and operators to
produce maps and conduct analyses.
Government officials and operators may
also apply for access to the NPMS
pipeline facility GIS data in their area of
jurisdiction or for the pipeline facilities
they operate. Hazardous liquid
operators may only access USA GIS data
for the States in which they operate or
are constructing hazardous liquid
pipelines. Except for HCA and USA GIS
data available on the General Public
Portal (i.e., populated areas,
commercially navigable waterways, and
the Great Lakes), all GIS data from the
NPMS is considered for official use only
and requires an application process that
can include an official request letter
from a pipeline company manager.
Detailed instructions for access to GIS
data from the NPMS are available on the
NPMS website at https://
www.npms.phmsa.dot.gov/. PHMSA
conducts reviews of publicly available
dataset updates every two years to
maintain HCA data accuracy. PHMSA
announces updates via emails to
pipeline operators and on the NPMS
website.
IV. Consequences of Hazardous Liquid
Pipeline Spills in Coastal Areas and the
Great Lakes
Any release of petroleum, petroleum
products, or other hazardous liquids can
14 PHMSA, Press Release, ‘‘PHMSA ID’s Great
Lakes as an Ecological Resource in NPMS’’ (Oct. 21,
2019), https://www.phmsa.dot.gov/news/phmsaids-great-lakes-ecological-resource-npms.
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adversely affect human health and
safety, threaten wildlife and habitats,
impede commercial navigation, or
damage personal or commercial
property. Spills into bodies of water
present increased risk because the water
and water currents act as conveyances
to increase the spread of the spill. These
factors greatly complicate response,
recovery, and remediation efforts for
spills affecting bodies of water and
intertidal land along the shoreline.
Major oil spills within the Great Lakes,
shorelines, or coastal waters would have
extreme, negative, and persistent
impacts on shoreline ecology, benthic
communities at the base of the
ecosystem, fisheries, human health, and
the economy of coastal communities.
This IFR takes immediate action
necessary to ensure that operators take
appropriate steps to protect the Great
Lakes, coastal communities, and marine
waters from the impacts of hazardous
liquid spills into these fragile
environments. Although prediction of
the precise number of avoided accidents
realized by this rulemaking’s extension
of IM requirements to currently
unregulated pipelines is challenging,
the historical examples below
underscore the magnitude of adverse
environmental consequences for coastal
beaches and coastal waters in the event
of a significant pipeline accident.
The most recent significant pipeline
accident that affected coastal beaches
and coastal waters was a 2015 oil spill
where a pipeline operated by Plains
Pipeline, LP (Plains) failed due to
external corrosion.15 While this rupture
occurred in an HCA and therefore was
subject to PHMSA’s IM requirements,16
it highlights many of the probable
impacts of oil pipeline spills into
coastal areas. The rupture released 2,934
barrels (approximately 123,000 gallons)
of heavy crude oil near Santa Barbara,
California. Approximately 500 barrels
(21,000 gallons) of crude oil reached the
Pacific Ocean near Refugio State Beach.
On March 13, 2020, the U.S. Department
of Justice (DOJ) announced a settlement
that required Plains pay over $60
15 PHMSA, ‘‘Failure Investigation Report: Plains
Pipeline, LP, Line 901 Crude Oil Release, May 19,
2015—Santa Barbara County, California’’ (May
2016), https://www.phmsa.dot.gov/foia/plainspipeline-lp-line-901-failure-investigation-report
(last accessed June 21, 2021).
16 PHMSA and others brought a civil suit against
Plains alleging, inter alia, that numerous violations
of PHMSA’s IM requirements contributed to the
accident. See United States of America, et al. v.
Plains All America Pipeline, L.P., Docket No. 2:20–
cv–02415, Complaint at ¶¶ 130–158 (C.D. Cal. Mar.
13, 2020). Plains acceded to a consent decree
resolving those violations. See United States of
America, et al. v. Plains All America Pipeline, L.P.,
Docket No. 2:20–cv–02415, Consent Decree at ¶ 70
(C.D. Cal. Mar. 13, 2020).
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million in penalties, clean-up costs, and
natural resources assessment costs and
damages.17 This spill is estimated to
have contaminated over 3,000 acres of
shoreline, subtidal, and benthic
habitats, and resulted in the injury or
death to hundreds of birds and marine
mammals.18 In addition to the severe
ecological impacts, the spill itself and
cleanup activities significantly limited
recreational and commercial use of the
oil contaminated coastal beaches and
surrounding areas.
Another accident demonstrating the
significant adverse environmental
consequences of pipeline spills into
bodies of water was the rupture of
Enbridge Line 6B, which occurred on
July 26, 2010, near the town of Marshall,
Michigan. While this spill occurred on
a segment of pipe within an HCA 19 and
along an inland, freshwater river, rather
than along the coast, the adverse
impacts resulting from this spill are
similar to what could occur if a spill
occurred in connecting waters of the
Great Lakes estuaries, and other marine
waters up to the head of tidal influence,
which are specifically addressed in this
rule. This accident occurred when a 30inch pipeline ruptured, spilling
approximately 20,000 barrels of diluted
bitumen into the Kalamazoo River and
surrounding wetlands. The release
contaminated 40 miles of the Kalamazoo
River, and cleanup efforts were
complicated by the propensity for
diluted bitumen and other heavy crude
oils to sink. As a result of the spill, the
impacted segment of the river remained
closed for public, recreational use for
nearly two years.20 Environmental
impacts continued in the years
17 DOJ, ‘‘U.S. Pipeline Company to Modify its
National Operations to Implement Safeguards
Resulting from Oil Spill’’ (Mar. 13, 2020), https://
www.justice.gov/opa/pr/us-pipeline-companymodify-its-national-operations-implementsafeguards-resulting-oil-spill (last accessed April 2,
2021).
18 California Department of Fish and Wildlife et.
al., ‘‘Refugio Beach Oil Spill: Draft Damage
Assessment and Restoration Plan/Environmental
Assessment’’ (April 22, 2020), https://
wildlife.ca.gov/OSPR/NRDA/Refugio (last accessed
June 21, 2021).
19 Although this pipeline was subject to PHMSA’s
IM requirements, the operator’s non-compliance
with those requirements was a cause of the
accident. While operator error is always possible,
PHMSA believes that the inclusion of these
requirements in this rulemaking will reduce the risk
of future accidents. See PHMSA, CPF No. 3–2012–
5013, In the Matter of Enbridge Energy Limited
Partnership (Sept. 7, 2012), https://
primis.phmsa.dot.gov/comm/reports/enforce/
documents/320125013/320125013_
Final%20Order_09072012.pdf.
20 Klug, Fritz, ‘‘Kalamazoo River reopens to the
public, 2 years after Enbridge oil spill in Michigan,’’
Michigan Live (Jan. 20, 2019), https://
www.mlive.com/news/kalamazoo/2012/06/see_
what_sections_of_the_kalam.html.
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following the spill, including decreases
in fish abundance and variety in
downstream areas until at least 2013.21
Enbridge agreed to pay over $1 billion
in cleanup costs and $177 million in a
settlement with DOJ, including $61
million in penalties.22 Other events
occurring on pipelines in or that could
affect HCAs, such as a 2018 anchor
strike that dented the submerged
Enbridge Line 5 in the Straits of
Mackinac,23 and the October 2021
discovery of a large crude oil release
from a pipeline near Huntington Beach,
CA,24 further highlight the damage that
can be done by a pipeline spill into the
Great Lakes or other coastal waters.
Non-pipeline spills in coastal areas
have also resulted in widespread
environmental damage and economic
impacts. In 1969, an offshore oil
production platform experienced a
blowout off the coast of Santa Barbara,
California. That accident contaminated
35 miles of California shoreline.25 That
event was the largest marine oil spill in
U.S. history until the grounding of the
crude oil tanker, Exxon Valdez, in
Prince William Sound, Alaska in
1989,26 and later the blowout of the
Deepwater Horizon drilling rig in the
Gulf of Mexico in 2010.27 Each of these
events led to widespread harm to
marine and coastal ecosystems, and
economic harm to coastal resources
such as fisheries and recreational areas.
21 U.S. Fish and Wildlife Service et al., ‘‘Final
Damage Assessment and Restoration Plan/
Environmental Assessment for the July 25–26, 2010
Enbridge Line 6B Oil Discharges near Marshall, MI’’
(Oct. 2015), https://www.fws.gov/midwest/es/ec/
nrda/MichiganEnbridge/#nrdar.
22 DOJ, ‘‘United States, Enbridge Reach $177
Million Settlement After 2010 Oil Spills in
Michigan and Illinois’’ (July 20, 2016), https://
www.justice.gov/opa/pr/united-states-enbridgereach-177-million-settlement-after-2010-oil-spillsmichigan-and (last accessed July 26, 2021).
23 National Transportation Safety Board, MAB–
19/12, ‘‘Marine Accident Brief, Anchor Contact of
Articulated Tug and Barge Clyde S VanEnkevort/
Erie Trader with Underwater Cables and Pipelines’’
(May 21, 2018), https://www.ntsb.gov/
investigations/AccidentReports/Pages/
MAB1912.aspx.
24 PHMSA, CPF No. 5–2021–054–CAO, Corrective
Action Order issued to Amplify Energy Corp. (Oct.
4, 2021), https://www.phmsa.dot.gov/news/phmsacorrective-action-order-amplify-energy-corporationbeta-offshore.
25 Mai-Duc, Christine, ‘‘The 1969 Santa Barbara
Oil Spill That Changed Oil and Gas Exploration
Forever,’’ Los Angeles Times (May 20, 2015),
https://www.latimes.com/local/lanow/la-me-lnsanta-barbara-oil-spill-1969-20150520htmlstory.html.
26 EPA, ‘‘Exxon Valdez Spill Profile—U.S. EPA
Emergency Response,’’ https://www.epa.gov/
emergency-response/exxon-valdez-spill-profile (last
accessed June 21, 2021).
27 EPA, ‘‘Deepwater Horizon—BP Gulf of Mexico
Oil Spill—U.S. EPA Enforcement,’’ https://
www.epa.gov/enforcement/deepwater-horizon-bpgulf-mexico-oil-spill (last accessed June 21, 2021).
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V. Legislative and Administrative
History
A. PIPES Act of 2016
With the passage of the PIPES Act of
2016, Congress amended 49 U.S.C.
60109(b) to add ‘‘locations . . . that
have been identified as part of the Great
Lakes or have been identified as coastal
beaches, [or] marine coastal waters’’ to
the list of ‘‘areas where a pipeline
rupture would likely cause permanent
or long-term environmental damage.’’
Section 19 of the PIPES Act of 2016
ordered that PHMSA ‘‘revise section
195.6(b) of Title 49, Code of Federal
Regulations, to explicitly state that the
Great Lakes, coastal beaches, and
marine coastal waters are USA
ecological resources for purposes of
determining whether a pipeline is
located in a high consequence area.’’ As
described above, these areas will
therefore be defined as HCAs, and
operators of hazardous liquid pipelines
that could affect such areas will be
required to implement IM programs for
those segments.
Based on the 2016 mandate, PHMSA
searched for ‘‘locations that have been
identified as part of the Great Lakes or
have been identified as coastal beaches,
[or] marine coastal waters.’’ During this
search, described in section VI.B,
PHMSA used the definition of the Great
Lakes from 33 U.S.C. 1268 and
geospatial information from NOAA’s
U.S. State Submerged Lands dataset and
added the Great Lakes to the NPMS.
PHMSA was unable to locate any
existing U.S. statutory or regulatory
provision(s) providing similarly helpful
definitions of ‘‘marine coastal waters’’
or ‘‘coastal beaches.’’ Due to uncertainty
regarding how to define ‘‘locations . . .
that have been identified as . . . coastal
beaches [or] marine coastal waters’’ as
described in the PIPES Act of 2016,
PHMSA held two public meetings,
discussed below, and began drafting an
advance notice of proposed rulemaking
to seek public input on how to best
define those terms in part 195 and
provide GIS data representing the
location of those areas in the NPMS.
B. Public Meetings
PHMSA held public meetings on
November 17, 2017, and June 12, 2019,
to discuss definitions for ‘‘coastal
beaches,’’ ‘‘marine coastal waters,’’ 28
and ‘‘the Great Lakes,’’ and to identify
GIS data sources to map such features
in the NPMS. Both were in-person
meetings in Washington, DC with
28 As described in greater depth below, the PIPES
Act of 2020 replaced the term ‘‘marine coastal
waters’’ with ‘‘certain coastal waters.’’
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options for remote participation.
Materials presented during these
meetings are available at the web page
for each meeting.29 The 2017 meeting
included discussions on how PHMSA
currently maps commercially navigable
waterways in the Great Lakes.
Representatives from PHMSA,
NatureServe, NOAA, the Pipeline Safety
Trust (PST), Phillips 66, Arcadis, and
the Coastal and Marine Operators
Pipeline Industry Initiative (CAMO)
gave presentations. The meeting
included discussions of potential data
sources for shoreline types, what should
be classified as a ‘‘coastal beach,’’ and
where to define the landward and
seaward extent of ‘‘marine coastal
waters.’’
The 2019 meeting focused primarily
on nine questions that PHMSA provided
to attendees prior to the meeting, which
included proposed definitions for
‘‘locations that have been identified as
part of the Great Lakes, or have been
identified as coastal beaches, [or]
marine coastal waters.’’ Also discussed
was the creation of new USA ecological
resource GIS data based on the proposed
definitions. PHMSA developed the
proposed definitions and other
questions for the 2019 public meeting
after reviewing comments from the 2017
public meeting, the data pilot project,30
and PHMSA’s internal research.
Question 9A, presented to the public
meeting participants, included a
discussion on whether PHMSA should
use the GIS data depicting the extent of
the U.S. State Submerged Lands dataset
to map the Great Lakes and Question 9B
referenced the statutory definition of the
Great Lakes found in 33 U.S.C. 1268.
PHMSA ultimately determined that the
U.S. State Submerged Lands GIS data
was the best mapping source to match
the existing Great Lakes definition and
added these data to the NPMS. This
change is described in section VI.B.
PHMSA, American Petroleum Institute
(including Plains All American
Pipeline, L.P. and Freeman GIS, Inc.),
PST, and the Louisiana Department of
Natural Resources each gave
presentations during the 2019 meeting.
29 Materials from the November 2017 meeting can
be found at https://primis.phmsa.dot.gov/meetings/
MtgHome.mtg?mtg=129; materials from the June
2019 Meeting can be found at https://
primis.phmsa.dot.gov/meetings/
MtgHome.mtg?mtg=142. Those meeting materials
are also available in the docket for this rulemaking
at https://www.regulations.gov/docket?D=PHMSA2017-0094.
30 After the 2017 public meeting, PHMSA
conducted a data pilot project to identify possible
GIS data representing the definitions from the
PIPES Act of 2016. The output of these data
analyses are the suggested GIS data options and
sample maps presented at the 2019 public meeting.
These are available on the meeting page.
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PHMSA requested that attendees post
their questions and concerns to the
docket for the meeting. Following the
meeting, PHMSA worked to develop
regulatory definitions and data sets
addressing the challenges identified
during the meeting and in public
comments.
C. PIPES Act of 2020
The PIPES Act of 2020 eliminated the
uncertainty regarding the undefined
terms ‘‘coastal beach’’ and ‘‘marine
coastal waters,’’ as they appeared in the
PIPES Act of 2016. Section 120 of the
PIPES Act of 2020 amended Section 19
of the PIPES Act of 2016. Congress
eliminated the term ‘‘marine coastal
waters’’ and replaced it with ‘‘certain
coastal waters,’’ which Congress defined
as ‘‘the territorial sea of the United
States; the Great Lakes and their
connecting waters; and the marine and
estuarine waters of the United States up
to the head of tidal influence.’’
Furthermore, Congress defined ‘‘coastal
beach’’ as ‘‘any land between the highand low-water marks of certain coastal
waters.’’ Congress directed PHMSA to
incorporate those definitions within its
regulations not later than 90 days after
the enactment. This rule therefore
incorporates the statutory definitions of
‘‘certain coastal waters’’ and ‘‘coastal
beach’’ into § 195.6 verbatim.
Nevertheless, PHMSA invites comments
on its plan to implement this mandate
in the NPMS, which is described in
section VI.
VI. Summary of Amendments
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A. Revisions to § 195.6
Pursuant to the plain language of
Section 19 of the PIPES Act of the 2016,
as amended by the PIPES Act of 2020,
this IFR amends § 195.6 to explicitly
state that the Great Lakes, coastal
beaches, and certain coastal waters are
USA ecological resources for the
purposes of determining whether a
pipeline is in an HCA, as defined in
§ 195.450. In the IFR, PHMSA has
revised § 195.6(c) to include the terms
‘‘coastal beach’’ and ‘‘certain coastal
waters,’’ employing the statutorily
mandated definitions in the PIPES Act
of 2020. The implementation of these
definitions in the NPMS is described in
sections VI.B and VI.C below. This
change also influences whether certain
onshore rural gathering lines are
regulated under § 195.11. The
requirements for certain onshore rural
gathering lines within 1⁄4 mile of a USA
are described in section VI.D below.
‘‘Certain coastal waters’’ are defined
in this rule as ‘‘the territorial sea of the
United States; the Great Lakes and their
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connecting waters; and the marine and
estuarine waters of the United States up
to the head of tidal influence.’’ This
language mirrors the definition
provided in the PIPES Act of 2020.
Pursuant to Presidential Proclamation
5928,31 the territorial sea of the United
States extends 12 nautical miles
(approximately 13.8 miles) from the
baseline of the United States.32
Generally, the baseline is drawn at the
line of Mean Lower Low Water, or the
lowest of the two low tides per day
averaged over an 18.6-year period, as
determined by NOAA; however, a
straight baseline is allowed in some
circumstances.33 In other words, the
territorial sea portion of ‘‘certain coastal
waters’’ extends from approximately the
line of low tide to 12 nautical miles out
to sea. The ‘‘marine and estuarine
waters of the United States up to the
head of tidal influence’’ refers to waters
inland of the landward limit of the
territorial sea up to the upstream limit
of water affected by the tide.34
As discussed in section VI.B below,
PHMSA was able to use the existing
expert agency definition and data to
identify the Great Lakes; PHMSA had
already included the Great Lakes and
connecting waters in the NPMS
consistent with the existing statutory
definition in 33 U.S.C. 1268. The Great
Lakes and connecting waters include
Lake Ontario, Lake Erie, Lake Huron
(including Lake St. Clair), Lake
Michigan, and Lake Superior, and the
connecting channels (Saint Mary’s
River, Saint Clair River, Detroit River,
Niagara River, and the Saint Lawrence
River to the Canadian border). This GIS
31 54
FR 777 (Jan. 9, 1989).
Presidential Proclamation 5928
contemplated that an earlier, 3 nautical mile
boundary of the ‘‘territorial sea of the United
States’’ would continue to apply in some regulatory
regimes (e.g., in connection with the Clean Water
Act (CWA, 33 U.S.C. 1251 et seq.)), PHMSA
understands a 12 nautical mile boundary to be
appropriate here. As noted elsewhere in this IFR,
NOAA—in its literature and its GIS datasets—
describes the ‘‘territorial sea’’ as being defined by
a 12 nautical mile seaward boundary. Further,
NPMS data yields that PHMSA’s oversight of
hazardous liquid pipelines under the pipeline
safety regulations currently extends to a number of
offshore pipelines located between the 3 nautical
mile and the 12 nautical mile lines. Therefore,
defining the seaward extent of the ‘‘territorial sea
of the United States’’ by reference to a more
limiting, 3 nautical mile boundary would not
protect the environmental resources Congress
sought to protect when incorporating that statutory
language within the PIPES Act of 2020.
33 Westington and Slagel, NOAA, ‘‘U.S. Maritime
Zones and the Determination of the National
Baseline’’ (2007), https://www.gc.noaa.gov/pdfs/
Westington_Slagel_2007.pdf.
34 NOAA, ‘‘Definition for ‘Head of Tide’’’ in
‘‘NOAA Tides and Currents Glossary’’ https://
tidesandcurrents.noaa.gov/glossary.html (last
accessed June 21, 2021).
32 Although
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dataset similarly relies on NOAA
shoreline data.
The term ‘‘coastal beach’’ is defined
in the PIPES Act of 2020, and therefore,
defined in this IFR as ‘‘any land
between the high- and low-water marks
of certain coastal waters.’’ While earlier
public meetings considered how the
term ‘‘coastal beach’’ might apply to
different shoreline types, the term
‘‘coastal beach’’ as defined the PIPES
Act of 2020 directed that ‘‘coastal
beach’’ covers ‘‘any land between the
high- and low-water marks of certain
coastal waters,’’ meaning intertidal land
adjoining coastal waters, regardless of
geomorphologic characteristics. Further,
the Great Lakes are considered nontidal.35
B. The Great Lakes in the NPMS
On October 21, 2019, PHMSA added
the Great Lakes as a USA in the NPMS
based on the mandate in Section 19 of
the PIPES Act of 2016.36 As described
above, PHMSA defined the Great Lakes
using an existing statutory definition at
33 U.S.C. 1268. PHMSA then selected
corresponding geospatial information
from the NOAA U.S. State Submerged
Lands dataset to map the Great Lakes in
the NPMS as a USA ecological resource
based on that definition. PHMSA has
not received any feedback on this
approach and has determined that this
information is consistent with the
updated mandates in the PIPES Act of
2020, as it includes each of the Great
Lakes and the connecting waters.
Nevertheless, PHMSA seeks comments
on the selection of this definition of the
Great Lakes and the mapping data used
to represent the location of the Great
Lakes.
C. Certain Coastal Waters and Coastal
Beaches in the NPMS
As described above, PHMSA
maintains GIS data of HCAs, including
USAs, as part of the NPMS. PHMSA
intends to map both ‘‘certain coastal
waters’’ and ‘‘coastal beaches’’ as USAs
in a single GIS dataset available from
the NPMS using a composite of the data
sets described in this section. The
datasets prepared by the EPA and
NOAA described here are developed
through the collection of tidal and
environmental data. These data,
collected over years, establishes the
location of ‘‘coastal beaches’’ and
35 NOAA, ‘‘Do the Great Lakes Have Tides?’’
https://oceanservice.noaa.gov/facts/gltides.html
(last accessed June 21, 2021).
36 PHMSA, Press Release, ‘‘PHMSA ID’s Great
Lakes as an Ecological Resource in NPMS’’ (Oct. 21,
2019), https://www.phmsa.dot.gov/news/phmsaids-great-lakes-ecological-resource-npms.
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‘‘certain coastal waters’’ as those terms
were defined by Congress.
‘‘Coastal beaches,’’ as defined in the
PIPES Act of 2020, extend from the high
water mark to the low water mark, and
the territorial sea portion of certain
coastal waters extend from
approximately the low water mars to the
seaward extent of the U.S. territorial sea.
Thus, the areas occupied by ‘‘certain
coastal waters’’ and ‘‘coastal beaches’’
are contiguous and may overlap. This
means that ‘‘coastal beaches’’ and the
‘‘territorial sea of the United States’’ GIS
data to be mapped in the NPMS will
cover all areas from near the line of high
water to the seaward limit of the
territorial sea of the United States. This
entire area must now be considered as
an ecological USA—and by extension,
an HCA—for compliance with the IM
requirements.
To provide GIS data representing the
location of ‘‘certain coastal waters’’ and
‘‘coastal beaches,’’ PHMSA intends to
create a single GIS dataset using a
combination of data available from EPA
and NOAA. Specifically, PHMSA
intends to use the EPA Clean Water Act
data prepared by NOAA, the EPA
Estuary Data Mapper, and the NOAA
Sea Level Rise Mean Higher High Water
Data to create a single ‘‘coastal beach’’
and ‘‘certain coastal waters’’ USA
dataset in the NPMS. PHMSA believes
that aggregating these datasets from
expert scientific Federal agencies
represents the best-available national
data on the location of ‘‘certain coastal
waters’’ (the territorial sea of the United
States, marine and estuarine waters of
the United States up to the head of tide,
and the Great Lakes), and ‘‘coastal
beaches’’ (land between the high and
low water marks). Each of these parent
datasets are prepared and published by
the expert agencies within the Federal
government and are available to the
public for download and review. The
use of publicly available data addresses
concerns about the availability of
proprietary and security-sensitive
information that were raised by the
Pipeline Safety Trust and others during
public meetings. PHMSA invites
comments on the use of these datasets
to satisfy the requirements of the PIPES
Act of 2020.
PHMSA will use a portion of the GIS
data NOAA compiled for EPA in
compliance with the Clean Water Act
(CWA) to represent the territorial sea
portion of its new GIS dataset. Like the
definition in the PIPES Act of 2020, the
CWA refers to the territorial sea of the
United States and the Great Lakes. The
NOAA CWA dataset represents GIS data
for the Great Lakes and connecting
waters, as well as waters from the mean
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high-water line to the 12 nautical mile
line (i.e., the seaward extent of the U.S.
territorial sea per Presidential
Proclamation No. 5928) and the 3
nautical mile line used for certain
Federal laws existing on or before the
issuance of Presidential Proclamation
No. 5928, including the CWA. The
landward boundary in the CWA dataset
is defined by the NOAA Medium
Resolution Shoreline Product 37 for the
contiguous U.S., and other Federal
data 38 for the shoreline in Alaska,
Hawaii, and Puerto Rico. For the
purposes of identifying the location of
‘‘certain coastal waters,’’ the seaward
extent of the U.S. territorial sea is
mapped at the 12 nautical mile line
depicted in the NOAA CWA dataset in
accordance with the meaning of that
term in Presidential Proclamation No.
5928 and international law. The NOAA
Medium Resolution Shoreline
represents the line of mean high
water.39 These data are compiled from
official NOAA nautical charts and
represents the definitive map of U.S.
maritime boundaries (such as the
seaward extent of the U.S. territorial
sea) under U.S. and international law.
While the U.S. territorial sea under
Presidential Proclamation No. 5928, as
mapped by NOAA, definitively
represents the U.S. territorial sea and
the Great Lakes, it does not identify the
location of marine and estuarine waters
of the United States up to the head of
tidal influence. In order to accurately
represent such waters, PHMSA intends
to include data from the EPA Estuary
Data Mapper in the NPMS map of
certain coastal waters and coastal
beaches. The Estuary Data Mapper
includes GIS polygon data for
approximately 2,000 named estuaries of
the United States. For the purposes of
this dataset, EPA defines an estuary as:
A partially enclosed body of water along
the coast where freshwater from rivers and
streams meet and mix with salt water from
the ocean. Estuaries and the lands
surrounding them are places of transition
from land to sea, and although influenced by
the tides, they are protected from the full
force of ocean waves, winds, and storms by
37 NOAA, ‘‘NOAA Medium Resolution
Shoreline’’ (Apr. 7, 2000), https://
shoreline.noaa.gov/data/datasheets/medres.html
#:∼:text=Abstract%3A%20NOAA’s%20medium
%2Dresolution%20shoreline,set%20created%20
for%20general%20use.&text=The%20data
%20set%20was%20created,Ocean%20
Resources%20Conservation%20and%20
Assessment (last accessed June 21, 2021).
38 For more information on these datasets, see the
‘‘Lineage’’ section of the metadata for this dataset
https://www.fisheries.noaa.gov/inport/item/48856.
39 See NOAA, ‘‘Definition of ‘Mean High Water’
in Tides and Currents Glossary’’ https://
tidesandcurrents.noaa.gov/glossary.html (last
accessed June 21, 2021).
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such landforms as barrier islands or
peninsulas.
This definition explicitly references
tidal influences. PHMSA understands
the Estuary Data Mapper data represents
the most complete national inventory of
estuarine waters. These data are
designed to support environmental
science and management efforts and the
EPA National Estuary Program.40 The
Estuary Data Mapper is a relatively new
GIS product tool, and it is not entirely
complete in Alaska, Hawaii, and some
areas of the Pacific Northwest.
Nonetheless, during the course of the
development of this document, EPA has
reported ongoing progress in this area.
The term ‘‘coastal beaches’’ includes
all land between the high and low-water
marks. The Medium Resolution
Shoreline used in the EPA map of the
U.S. territorial sea represents a location
between high and low-water marks. As
stated earlier, the Medium Resolution
Shoreline represents the mean high
water of the shore. NOAA defines
‘‘mean high water’’ as ‘‘the average of all
high-water heights observed over the
National Tidal Datum Epoch.’’ 41 In
contrast, NOAA defines the ‘‘high-water
mark’’ as ‘‘[a] line or mark left upon tide
flats, beach, or along shore objects
indicating the elevation of the intrusion
of high water. The mark may be a line
of oil or scum on along shore objects, or
a more or less continuous deposit of fine
shell or debris on the fore shore or
berm.’’ 42 Because this physical line
changes with each tidal shift, NOAA
measures and records the ‘‘higher high
water’’ (HHW), which is the ‘‘higher of
the two high waters of a tidal day where
the tide is semidiurnal (occurring twice
daily).’’ The average of the HHW values
is the tidal datum (i.e., a fixed starting
point) known as the ‘‘mean higher high
water’’ (MHHW).
As described above, the ‘‘high-water
mark’’ changes daily because it is
influenced by meteorological, climate,
and surf conditions. PHMSA is not
aware of any national data
representative of the physical highwater mark, which is dynamic and
changes day to day. In the absence of
this information, PHMSA will use the
MHHW GIS data product from NOAA’s
Sea Level Rise Viewer to approximate
40 EPA, ‘‘Frequently Asked Questions about
Estuary Data Mapper’’ https://www.epa.gov/hesc/
frequent-questions-about-estuary-data-mapper-edm
(last accessed June 21, 2021).
41 NOAA, ‘‘Tidal Datums’’ https://
tidesandcurrents.noaa.gov/datum_options.html
(last accessed June 21, 2021).
42 NOAA, ‘‘Definition of ‘High Water Mark’ in
‘‘Glossary of the NOAA Shoreline website’’ https://
shoreline.noaa.gov/glossary.html (last accessed
June 21, 2021).
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the location of the dynamic high-water
mark. The NOAA Sea Level Rise Viewer
includes digital elevation models and
the NOAA tidal datum of mean higher
high water. In certain locations and in
certain meteorological conditions, the
MHHW could be lower than a highwater mark. Nonetheless, the MHHW is
the most accurate dataset that PHMSA
is aware of for identifying the highwater mark and marine and estuarine
waters up to the head of tidal influence.
PHMSA acknowledges that MHHW may
not precisely align with the exact
physical high-water mark (indicated by
fine debris or scum line) at any given
time. In any event, the IM requirements
apply not only to segments of hazardous
liquid pipelines that cross an HCA but
also to any pipeline segments that
‘‘could affect’’ an HCA. In determining
which segments ‘‘could affect’’ an area,
operators need to consider the terrain
around the pipeline and natural forces
inherent in the area, including tidal
forces, meteorological conditions, and
flood zones, when determining which
pipeline segments could affect an HCA
(See section I.B. of appendix C to part
195).
D. Requirements for Pipelines That
Could Affect HCAs
As described in section II, changes to
the definition of the term ‘‘USA’’ affect
the hazardous liquid pipelines subject
to IM requirements. Operators of
hazardous liquid pipelines that could
affect the Great Lakes, ‘‘certain coastal
waters,’’ and ‘‘coastal beaches’’ must
include those segments in an IM
program. Based on a geospatial analysis
using data in the NPMS, PHMSA
estimates that 2,905 additional miles of
hazardous liquid pipelines, primarily in
states adjoining the Gulf of Mexico, will
be subject to liquid IM requirements due
to this IFR. This estimate reflects
segments located within 1⁄4 mile of any
of the newly defined USAs but are not
located within 1⁄4 mile of the location of
existing HCAs described in existing
§§ 195.6 and 195.450. Based on this
analysis, PHMSA anticipates that most
affected operators have an existing IM
program and will be able to extend that
plan to include the newly covered
segments. This analysis is described in
the RIA for this IFR.
In addition, operators of onshore
hazardous liquid pipelines submerged
more than 150 feet below the surface of
water that could affect an HCA must
comply with enhanced requirements for
submerged pipelines in self-executing
provisions described in § 120(d) of the
PIPES Act of 2020, codified at 49 U.S.C.
60109(g). That section of the pipeline
safety laws (49 U.S.C. 60101 et seq.)
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requires that operators perform annual
in-line inspections, annual route
surveys, and have (and follow)
procedures for assessing the potential
impacts from third-party damage from
vessels and maritime equipment,
including anchors and anchor chains.
The presence of a USA also effects
which onshore gathering lines are
subject to part 195 safety requirements
as regulated rural gathering lines.
Section 195.2 defines a rural area as
being outside the limits of any
incorporated or unincorporated city,
town, village, or any other designated
residential or commercial area such as
a subdivision, a business or shopping
center, or community development.
Currently, an onshore rural gathering
line is subject to safety requirements in
§ 195.11 if the pipeline has a nominal
diameter from 65⁄8 inches to 85⁄8 inches,
has a stress level greater than 20 percent
of the specified minimum yield strength
(or a pressure of 125 pounds per square
inch gauge (psig) for non-steel pipe or
if the stress level is not known), and is
located within 1⁄4-mile of a USA.
Defining new USAs may result in
additional pipelines being classified as
regulated rural gathering lines.
However, PHMSA expects that the effect
of the IFR on the mileage of onshore
regulated rural gathering lines will be
limited since rural gathering lines are
not generally located along the coasts
near most of the new USAs established
by the IFR. Further, those rural
gathering lines that are near the coasts
may already be subject to part 195
requirements (pursuant to § 195.1) if
they are either located in a non-rural
area, cross commercially navigable
waterways, or are located in the inlets
of the Gulf of Mexico.43 As discussed in
the RIA, PHMSA estimates that 58.5
miles of currently unregulated rural
gathering lines will become regulated,
and that the resulting regulatory burden
for those lines will be $63 thousand in
the first year of analysis, and $15
thousand in years two through ten.
PHMSA welcomes comment on its
assumptions regarding the mileage and
regulatory burden for currently
unregulated gathering lines that become
regulated as a result of the IFR, as well
as corresponding safety benefits.
Rural gathering lines between 65⁄8
inches and 85⁄8 inches in diameter that
become regulated rural gathering lines
as a result of the IFR become subject to
the requirements listed in § 195.11(b).
An operator of a regulated rural
gathering line must comply with
43 PHMSA also notes that gathering lines larger
than 85⁄8 inches are already subject to part 195
safety requirements.
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reporting requirements in subpart B of
part 195; establish a maximum
operating pressure of the pipeline in
accordance with § 195.406; install and
maintain line markers in accordance
with § 195.410; establish and carry out
a public education program in
accordance with § 195.440; establish
and carry out a damage prevention
program in accordance with § 195.442;
comply with corrosion control
requirements in subpart H; establish and
carry out a program to identify internal
corrosion in accordance with
§ 195.11(b)(10); and comply with
operator qualification program
requirements in accordance with
subpart G to part 195 and § 195.505. A
new or replaced regulated rural
gathering line must also comply with
the initial design, installation,
construction inspection, and testing
requirements in part 195, unless that
pipeline is being converted to service
under § 195.5. Pursuant to § 195.11(c),
an operator most comply with
§ 195.11(b)(2)–(11) within 6 months
from the date that a new USA has been
identified, except for the requirements
for corrosion control, which are subject
to the compliance timelines in part 195,
subpart H.
Finally, the part 195 requirements
applicable to low-stress pipelines
located in rural areas depend on the
pipeline’s proximity to a USA. Section
195.12 defines a low-stress rural
pipeline as a line located in a rural area
and having a maximum operating
pressure corresponding to a stress level
of 20 percent or less of the specified
minimum yield strength (or if the stress
level is unknown, or for non-steel
pipelines, a pressure less than or equal
to 125 psig). A rural low-stress line that
is located within 1⁄2 mile of a USA (or
alternatively, that could affect an HCA
as determined in § 195.452(a)) is a
Category 1 or Category 2 rural low-stress
line that must comply with all of the
safety requirements in part 195. Other
rural low-stress pipelines not within 1⁄2
mile of a USA are Category 3 lines that
must comply with all the requirements
of part 195 except the IM program
requirements in § 195.452. Pursuant to
§ 195.12(e), a Category 3 rural low-stress
line or any other pipeline that becomes
a Category 1 or Category 2 rural lowstress line must comply with the IM
program requirements within 12 months
following the date the USA is identified
(i.e., the effective date of this IFR). IM
program requirements are described in
detail above.
Because the IFR expands the scope of
USAs, some Category 3 rural low-stress
lines may become Categories 1 or 2 rural
low stress lines and, therefore, would be
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subject to IM program requirements at
§ 195.452(a). However, similar to the
discussion of onshore regulated rural
gathering above and as explained in the
RIA, PHMSA understands relatively few
rural low-stress pipelines will be
affected by the IFR. Newly impacted
rural low-stress lines located within 1⁄4mile of the new USAs are included in
the RIA mileage estimate. However,
PHMSA did not perform a separate
analysis of rural-low stress lines located
between 1⁄4 mile and 1⁄2 mile of a newly
designated USA. PHMSA expects the
(current) Category 3 pipeline mileage
which could be so affected to be
minimal given that much of the rural
low-stress lines near a coast would cross
navigable waters and therefore would
already be subject to IM program
requirements under § 195.1. However,
in 2020, operators reported only 3,100
miles of rural low-stress hazardous
liquid lines total across all reported
categories. Similar to the discussion of
regulated rural gathering lines, much of
the pipeline mileage near the new USAs
(which are mostly along the coasts) is
already subject to IM program
requirements pursuant to the general
applicability of part 195 to pipelines
crossing navigable waters or that are
located in the inlets of the Gulf of
Mexico in § 195.1(a). Further, operators
of rural low-stress liquid lines have the
option to perform an HCA could-affect
analysis under § 195.452(a) rather than
use the 1⁄2-mile criteria.
VII. Effective Date and Comments
This IFR is effective without advance
notice and public comment as the
amendments to the CFR in the IFR are
not subject to agency discretion. Section
19 of the PIPES Act of 2016, as amended
by the PIPES Act of 2020 states that the
Secretary ‘‘shall revise section 195.6
[. . .] to explicitly state that the Great
Lakes, coastal beaches and certain
coastal waters are USA ecological
resources.’’ The PIPES Act of 2020
further specifies statutory definitions for
each of these terms. Pursuant to the
plain language of the mandates from the
PIPES Act of 2016 and the PIPES Act of
2020, the IFR adopts each of these
statutory definitions into § 195.6
verbatim. While PHMSA has no
discretion regarding the amendments to
§ 195.6 mandated by the Act, this IFR
invites comments on the national and
publicly available GIS datasets to
represent these new Ecological USA
definitions in the NPMS.
PHMSA will consider all relevant,
substantive comments in this area.
PHMSA encourages interested parties to
submit comments that: (1) Identify the
amendments being commented on and
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the appropriate section numbers; (2)
provide justification for their support or
opposition to the amendments,
especially data on safety risks and cost
burdens; and (3) provide specific
alternatives if appropriate.
VIII. Good Cause Exception
The Administrative Procedure Act
(APA, 5 U.S.C. 551 et seq.) permits an
agency to issue a final rule without first
publishing a proposed rule for public
comment when it demonstrates ‘‘good
cause’’ that notice and comment is
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ 5 U.S.C. 552
(b)(3)(B). This exception is narrow, and
PHMSA is proceeding with an IFR only
in light of the specific instructions from
Congress in the PIPES Act of 2020 that
render comment both unnecessary and
impracticable.
Prior notice and comment are
unnecessary for this rulemaking because
Congress, in the PIPES Act of 2020,
provided clear, defined terms and
required PHMSA to update its
regulations to incorporate those terms.
Specifically, Congress clarified that
‘‘certain coastal waters’’ means the
territorial sea of the United States, the
Great Lakes, and marine and estuarine
waters up to the head of tidal influence.
Congress also clarified which areas must
be designated as a ‘‘coastal beach.’’
These statutory definitions resolved
uncertainties within language in the
PIPES Act of 2016 to expand the
hazardous liquid pipelines subject to IM
requirements. Congress did not provide
discretion for PHMSA to adopt the
regulatory amendments in this IFR,
requiring PHMSA to ‘‘revise § 195.6(b)
to explicitly state that the Great Lakes,
coastal beaches, and certain coastal
waters are USA ecological resources for
purposes of determining whether a
pipeline is in a high consequence area.’’
Notice and comment are also
unnecessary because the definitions of
the terms that Congress required
PHMSA to include in its regulations are
also further specifically defined by other
expert Federal agencies, as described in
the paragraphs that follow.
‘‘The territorial sea of the United
States’’ has a long-established meaning
based on Presidential Proclamation
5928, international law, and NOAA data
sets. Each of these authorities define
and designate the ‘‘territorial sea of the
United States,’’ as extending 12 nautical
miles (approximately 13.8 miles) from
the ‘‘baseline.’’ NOAA is responsible for
delineating the ‘‘baseline,’’ based on its
tidal datum Mean Lower Low Water, or
the lowest of the two low tides per day
averaged over an 18.6-year period.
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Next, NOAA has defined the
boundaries of ‘‘marine waters of the
United States.’’ While the term ‘‘marine
waters’’ is not specifically defined in the
U.S. Code, NOAA has defined ‘‘marine
waters’’ as those waters subject to tidal
influence. The seaward boundary of
‘‘marine waters’’ would be the extent of
‘‘the territorial seas of the United
States,’’ as described above. The
landward boundary of the ‘‘marine
waters’’ is designated by NOAA’s
polygon GIS data identifying the
MHHW values. These values are the
averages of daily HHW recordings from
NOAA tide stations over a period of
18.6 years.
EPA defines the boundaries of
‘‘estuarine waters of the United States.’’
The Clean Water Act authorizes EPA to
define and map estuarine resources
pursuant to the National Estuary
Program provided for in the Clean Water
Act (33 U.S.C. 1330). As described
above, EPA similarly defines estuaries
as subject to tidal influence. The EPA
has also made estuary polygon data
available in EPA’s Estuary Data Mapper
(EDM) that maps approximately 2,000
named estuaries identified using EPA’s
Environmental Monitoring and
Assessment Program’s National Coastal
Condition Assessment.
NOAA has also defined the terms
used in Congress’ definition for ‘‘coastal
beaches.’’ The PIPES Act of 2020
defines the term ‘‘coastal beach’’ to
mean any land between the high- and
low-water marks of certain coastal
waters. As discussed above, NOAA has
defined and mapped the MHHW, which
is an authoritative tidal datum for
approximating a ‘‘high water mark.’’ In
contrast, the low water mark need not
be defined for the purposes of the PIPES
Act of 2020 because everything seaward
of the high water mark is included in
either the ‘‘territorial sea of the United
States,’’ or the ‘‘marine and estuarine
waters of the United States up to the
head of tidal influence’’—terms which,
as explained above, have been defined
and mapped by NOAA and EPA.
Given the above, PHMSA has
determined that it lacks discretion to
alter or consider alteration of the longstanding definitions or practical
understandings of ‘‘the territorial sea of
the United States,’’ ‘‘marine waters of
the United States,’’ ‘‘estuarine waters of
the United States,’’ and ‘‘coastal
beaches.’’ Similarly, PHMSA lacks
discretion to alter or consider
redesignation of the GIS polygons as
depicted in NOAA’s Clean Water Act
data, the EPA EDM, and the NOAA Sea
Level Rise MHHW Data. Changes to
these definitions and designations
would be inaccurate, would cause
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confusion, and would be an
unnecessary waste of government
resources. Therefore, a traditional notice
and comment rulemaking is
unnecessary.
The Congressionally-specified
regulatory language, along with an
aggressive Congressional deadline, also
render traditional notice and comment
impracticable. In light of the earlier
challenges PHMSA faced in defining
and mapping the undefined terms
‘‘marine coastal waters’’ and ‘‘coastal
beaches,’’ Congress in the PIPES Act of
2020 intervened in a pending PHMSA
rulemaking (under the same RIN as this
rulemaking) to ensure PHMSA had the
tools—clear, defined terms in place of
the ambiguous language in the PIPES
Act of 2016—to resolve the bases for
PHMSA’s protracted delay in
responding to an earlier rulemaking
mandate. Congress also demanded
PHMSA ‘‘complete’’ those regulatory
amendments within 90 days of
enactment of the PIPES Act of 2020.
Congress’ expectations regarding the
need for prompt PHMSA action to
complete this rulemaking is
understandable given the history of
hazardous liquid pipeline accidents that
have affected or threatened coastal
waters and the Great Lakes and other
sensitive ecosystems. The negative
environmental and human health
impacts of hazardous liquid releases
such as the 2010 Marshall, MI and 2015
Plains accidents persist for years, even
despite best clean-up efforts. The 2018
anchor strike on Enbridge Line 5 further
underscored the urgency of updating
PHMSA’s regulatory framework to
address those risks. More recently,
members of Congress have also
identified the October 2021 discovery of
a large crude oil release from a pipeline
near Huntington Beach, CA, as evidence
of the need for prompt PHMSA action
to complete this rulemaking.44
Further delay of this IFR’s regulatory
revisions to accommodate notice and
comment procedures would, therefore,
frustrate an aggressive Congressional
timeline for prompt completion of the
specific regulatory amendments that
Congress understood as being necessary
to align PHMSA’s IM regulations with
the grave public safety and
environmental risks posed by hazardous
liquid lines. For those reasons,
traditional notice and comment
procedures are impracticable.
44 See Letter from Reps. Graves & Crawford to
Acting PHMSA Administrator Brown (Oct. 14,
2021), https://republicans-transportation.
house.gov/news/
documentsingle.aspx?DocumentID=405635.
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IX. Regulatory Analyses and Notices
Legal Authority for This Rulemaking
This IFR is published under the
authority of the Federal Pipeline Safety
Laws. Section 60102 authorizes the
Secretary of Transportation to issue
regulations governing the design,
installation, inspection, emergency
plans and procedures, testing,
construction, extension, operation,
replacement, and maintenance of
pipeline facilities. The Secretary has
delegated this authority to the PHMSA
Administrator under 49 CFR 1.97.
Further, Section 19 of the PIPES Act of
2016, as amended by the PIPES Act of
2020, requires the Secretary of
Transportation to revise § 195.6 to
explicitly state in § 195.6 that the Great
Lakes, certain coastal waters, and
coastal beaches are USAs for the
purpose of determining whether a
hazardous liquid pipeline is in or could
affect an HCA.
Executive Order 12866 and DOT
Policies and Procedures for Rulemaking
Executive Order 12866 (‘‘Regulatory
Planning and Review’’) 45 requires that
agencies ‘‘should assess all costs and
benefits of available regulatory
alternatives, including the alternative of
not regulating.’’ Agencies should
consider quantifiable measures and
qualitative measures of costs and
benefits that are difficult to quantify.
Further, Executive Order 12866 requires
that ‘‘agencies should select those
[regulatory] approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages;
distributive impacts; and equity), unless
a statute requires another regulatory
approach.’’ Similarly, DOT Order
2100.6A (‘‘Rulemaking and Guidance
Procedures’’) requires that regulations
issued by PHMSA and other DOT
Operating Administrations should
consider an assessment of the potential
benefits, costs, and other important
impacts of the proposed action and
should quantify (to the extent
practicable) the benefits, costs, and any
significant distributional impacts,
including any environmental impacts.
The Federal pipeline safety laws at 49
U.S.C. 60102(b)(5) further authorize
only those safety requirements whose
benefits (including safety and
environmental benefits) have been
determined to justify their costs.
Executive Order 12866 and DOT
Order 2100.6A require that PHMSA
submit ‘‘significant regulatory actions’’
to the Office of Management and Budget
45 58
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73183
(OMB) for review. This IFR has been
determined to be significant under
section 3(f) of Executive Order 12866
and was reviewed by OMB. It is also
considered significant under DOT Order
2100.6A. The Office of Information and
Regulatory Affairs (OIRA) has not,
however, designated this rule as a
‘‘major rule’’ as defined by the
Congressional Review Act (5 U.S.C. 801
et seq.).
PHMSA estimates that the IFR will
result in unquantified public safety and
environmental benefits associated with
preventing and mitigating hazardous
liquid pipeline accidents within or that
could affect coastal beaches, coastal
waters, or the Great Lakes. PHMSA
estimates annualized costs of between
$3.91 million per year (using a 3 percent
discount rate) and $3.98 million per
year (using a 7 percent discount rate)
due to costs associating with
establishing or updating IM programs
and performing integrity assessments.
The costs and benefits of the IFR are
described in further detail in the RIA,
which is available in the docket.
Executive Order 13132
PHMSA analyzed this IFR in
accordance with Executive Order 13132
(‘‘Federalism’’).46 Executive Order
13132 requires agencies to assure
meaningful and timely input by State
and local officials in the development of
regulatory policies that may have
‘‘substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.’’
This IFR does not have a substantial
direct effect on State and local
governments, the relationship between
the national government and the States,
or the distribution of power and
responsibilities among the various
levels of government. This rulemaking
action does not impose substantial
direct compliance costs on State and
local governments.
While the IFR may operate to preempt
some State requirements, it does not
impose any regulation that has
substantial direct effects on the States,
the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. The pipeline
safety laws, specifically 49 U.S.C.
60104(c), prohibit State safety regulation
of interstate pipeline facilities. Although
the pipeline safety laws allow States to
augment pipeline safety requirements
46 64
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for intrastate pipeline facilities, States
may not issue safety requirements less
stringent than those required by Federal
law. A State may also regulate an
intrastate pipeline facility PHMSA does
not regulate.
In this instance, the preemptive effect
of the IFR is limited to the minimum
level necessary to achieve the objectives
of the Federal pipeline safety law under
which the IFR is promulgated.
Therefore, the consultation and funding
requirements of Executive Order 13132
do not apply.
Environmental Justice
DOT Order 5610.2C and Executive
Orders 12898 (‘‘Federal Actions to
Address Environmental Justice in
Minority Populations and Low-Income
Populations’’),47 13985 (‘‘Advancing
Racial Equity and Support for
Underserved Communities Through the
Federal Government’’),48 13990
(‘‘Protecting Public Health and the
Environment and Restoring Science To
Tackle the Climate Crisis’’),49 and 14008
(‘‘Tackling the Climate Crisis at Home
and Abroad’’) 50 require DOT Operating
Administrations to achieve
environmental justice as part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects,
of their programs, policies, and
activities on minority populations, lowincome populations, and other
disadvantaged communities.
PHMSA has evaluated this IFR under
DOT Order 5610.2C and the Executive
Orders listed above and has determined
it will not cause disproportionately high
nor adverse human health and
environmental effects on minority
populations, low-income populations,
or other underserved and disadvantaged
communities. The IFR is facially neutral
and national in scope; it is neither
directed toward a particular population,
region, or community, nor is it expected
to adversely impact any particular
population, region, or community.
Indeed, because PHMSA expects the
rulemaking will reduce the safety and
environmental risks associated with
hazardous liquid pipelines generally,
PHMSA understands the regulatory
amendments introduced by this IFR
will, in fact, reduce any
disproportionate human health and
environmental risks for minority
populations, low-income populations,
47 59
FR 7629 (Feb. 16, 1994).
FR 7009 (Jan. 20, 2021).
49 86 FR 7037 (Jan. 20, 2021).
50 86 FR 7619 (Feb. 1, 2021).
or other underserved and other
disadvantaged communities in the
vicinity of pipelines within the scope of
the IFR’s amendments.
Executive Order 13175
PHMSA analyzed this IFR in
accordance with the principles and
criteria in Executive Order 13175
(‘‘Consultation and Coordination with
Indian Tribal Governments’’) 51 and
DOT Order 5301.1 (‘‘Department of
Transportation Programs, Polices, and
Procedures Affecting American Indians,
Alaska Natives, and Tribes’’). Executive
Order 13175 requires agencies to assure
meaningful and timely input from tribal
government representatives in the
development of rules that significantly
or uniquely affect tribal communities by
imposing ‘‘substantial direct compliance
costs’’ or ‘‘substantial direct effects’’ on
such communities or the relationship
and distribution of power between the
Federal government and tribes.
PHMSA assessed the impact of the
IFR and determined that it will not
significantly or uniquely affect tribal
communities or Indian tribal
governments. The rulemaking’s
regulatory amendments are facially
neutral and will have broad, national
scope; PHMSA, therefore, does not
expect this rulemaking to significantly
or uniquely affect tribal communities,
much less impose substantial
compliance costs on Native American
Tribal governments or mandate Tribal
action. And insofar as PHMSA expects
the rulemaking will improve safety and
reduce environmental risks associated
with hazardous liquid pipelines,
PHMSA has concluded it will not entail
disproportionately high adverse risks for
Tribal communities. The funding and
consultation requirements of Executive
Order 13175 do not apply.
Regulatory Flexibility Act, Executive
Order 13272
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires Federal
agencies to conduct a Regulatory
Flexibility Analysis (RFA) for any rule
subject to notice-and-comment
rulemaking under the APA unless the
agency head certifies that the rule will
not have a significant economic impact
on a substantial number of small
entities. This final rule was developed
in accordance with Executive Order
13272 (‘‘Proper Consideration of Small
Entities in Agency Rulemaking’’) 52 to
promote compliance with the RFA and
to ensure that the potential impacts of
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the rulemaking on small entities has
been properly considered.
As discussed above, PHMSA has
determined that there is ‘‘good cause’’ to
forego prior notice and comment and
amend the pipeline safety regulations
through this IFR. The Regulatory
Flexibility Act, therefore, does not
require PHMSA to conduct an RFA.
Nonetheless, PHMSA conducted a
screening analysis of the impact of the
IFR on small entities, which is included
in a final RFA within the rulemaking
docket. As explained at greater length in
that RFA, PHMSA has analyzed NPMS
data and determined that only a small
share of hazardous liquid pipeline
mileage nationwide will be affected by
the IFR—and the operators of most of
that mileage either (1) already have IM
programs, or (2) are not small entities.
Further, the compliance costs incurred
by even the handful of small entities
that would be affected will not be
‘‘significant’’ under the Regulatory
Flexibility Act. For these reasons,
PHMSA certifies that the IFR will not
have a significant economic impact on
a substantial number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) establishes
policies and procedures for controlling
paperwork burdens imposed by Federal
agencies on the public. Pursuant to 44
U.S.C. 3506(c)(2)(B) and 5 CFR
1320.8(d), PHMSA must provide
interested members of the public and
affected agencies with an opportunity to
comment on information collection and
recordkeeping requests. PHMSA expects
this IFR to impact the information
collections described below.
PHMSA will submit an information
collection revision request to OMB for
approval based on the requirements in
this IFR. The following information is
provided for each affected information
collection: (1) Title of the information
collection; (2) OMB control number; (3)
current expiration date; (4) type of
request; (5) abstract of the information
collection activity; (6) description of
affected public; (7) estimate of total
annual reporting and recordkeeping
burden; and (8) frequency of collection.
The information collection burden for
the following information collection is
estimated to be revised as follows:
1. Title: Hazardous Liquid Pipeline
Assessment Requirements.
OMB Control Number: 2137–0605.
Current Expiration Date: 4/30/23.
Abstract: This information collection
covers documentation and notifications
associated with hazardous liquid
pipeline IM requirements. These
requirements include documentation of
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continual assessment and evaluation
and preventative and mitigative
measures. PHMSA estimates that the
new USA definitions in the IFR will
require 6 operators to create new IM
programs, resulting in 46,640 hours of
additional burden to prepare an IM
program and integrate safety
information in the first year and 1,860
hours of additional burden each
subsequent year. This results in an
average annual burden increase of
16,787 hours per year over 3 years.
PHMSA estimates that the remaining
105 affected operators are already
subject to IM requirements, and
therefore already have an IM program
and perform annual updates.
Affected Public: Hazardous Liquid
Pipeline Operators.
Total Reporting and Recordkeeping
Burden:
Total Annual Responses: 10,509.
Total Annual Burden Hours: 342,394
hours.
Frequency of Collection: Regular.
2. Title: Qualification of Pipeline
Safety Training.
OMB Control Number: 2137–0600.
Current Expiration Date: 11/30/2024.
Abstract: This information collection
covers requirements to make and
maintain training and qualification
records of pipeline operating personnel.
For hazardous liquid pipeline operators,
these requirements are described in
subpart G of part 195. These records
include identification of individuals
qualified to perform covered tasks, the
covered tasks they are qualified to
perform, and the method and date they
were qualified. These records must be
maintained while the individual is
performing qualified tasks, or 5 years
after the individual is no longer
performing covered tasks. PHMSA
estimates that the new USA definitions
in the IFR will require operators of rural
gathering lines regulated under § 195.11
to keep records of qualification for 30
additional individuals. This results in
an average annual burden increase of 5
responses and 1 hour per year over 3
years.
Affected Public: Hazardous Liquid
Pipeline Operators.
Total Reporting and Recordkeeping
Burden:
Total Annual Responses: 29,172.
Total Annual Burden Hours: 2,293
hours.
Frequency of Collection: Regular.
3. Title: Transportation of Hazardous
Liquids by Pipeline: Recordkeeping and
Accident Reporting.
OMB Control Number: 2137–0047.
Current Expiration Date: 3/31/2024.
Abstract: This information collection
covers hazardous liquid pipeline
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accident report requirements in § 195.50
and general recordkeeping burden
associated with complying with Federal
hazardous liquid pipeline safety
regulations in part 195. PHMSA
estimates that the new USA definitions
in the IFR will require 2 operators of
rural gathering pipelines that become
regulated under part 195.11 to establish
recordkeeping programs to comply with
part 195 requirements applicable to
regulated rural gathering pipelines. This
results in an average annual burden
increase of 2 responses and 272 hours
per year over 3 years. PHMSA estimates
that 4 additional operators of affected
rural gathering liens already have part
195 recordkeeping programs associated
with regulated assets that they operate.
The reporting burden associated with
accident reports is unchanged.
Affected Public: Hazardous Liquid
Pipeline Operators.
Total Reporting and Recordkeeping
Burden:
Total Annual Responses: 743.
Total Annual Burden Hours: 45,919
hours.
Frequency of Collection: Regular and
on occasion.
4. Title: Public Awareness Program.
OMB Control Number: 2137–0622.
Current Expiration Date: 11/30/2024.
Abstract: This information collection
covers records and reports generated in
order to demonstrate compliance with
public awareness program requirements.
Hazardous liquid pipeline operators
must comply with the public awareness
program requirements in § 195.440.
Program documentation and program
evaluation results must be retained and
be made available to Federal and State
pipeline safety regulatory agencies.
PHMSA estimates that the new USA
definitions in the IFR will require 2
operators of rural gathering pipelines
that become regulated under part 195.11
to establish recordkeeping programs to
comply with public awareness program
requirements. PHMSA estimates an
average annual burden increase of 4
responses and 92 hours per year over 3
years associated with annual program
development and program evaluation
and update requirements. PHMSA
estimates that 4 additional operators of
affected rural gathering lines already
have public awareness recordkeeping
programs associated with regulated
assets that they operate.
Affected Public: Hazardous Liquid
Pipeline Operators.
Total Reporting and Recordkeeping
Burden:
Total Annual Responses: 45,004.
Total Annual Burden Hours: 517,592
hours.
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73185
Frequency of Collection: Regular.
Those desiring to comment on these
information collections should send
comments directly to the Office of
Management and Budget, Office of
Information and Regulatory Affairs.
Comments should be submitted on or
prior to February 25, 2022 via email at
the following address: oira_
submissions@omb.eop.gov.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
(UMRA, 2 U.S.C. 1501 et seq.) requires
agencies to assess the effects of Federal
regulatory actions on State, local, and
Tribal governments, and the private
sector. For any NPRM or final rule that
includes a Federal mandate that may
result in the expenditure by State, local,
and Tribal governments, in the aggregate
of $100 million or more (in 1996
dollars) in any given year, the agency
must prepare, amongst other things, a
written statement that qualitatively and
quantitatively assesses the costs and
benefits of the Federal mandate. As
explained further in the RIA, PHMSA
has determined that the IFR does not
impose enforceable duties on State,
local, or Tribal governments or on the
private sector of $100 million or more
(in 1996 dollars) in any one year. A
copy of the RIA is available for review
in the docket of this rulemaking.
Privacy Act Statement
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, including any personal information
the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
National Environmental Policy Act
The National Environmental Policy
Act (NEPA, 42 U.S.C. 4321 et. seq.)
requires Federal agencies to prepare a
detailed statement on major Federal
actions significantly affecting the
quality of the human environment. The
Council on Environmental Quality
implementing regulations (40 CFR parts
1500–1508) require Federal agencies to
conduct an environmental review
considering (1) the need for the action,
(2) alternatives to the action, (3)
probable environmental impacts of the
action and alternatives, and (4) the
agencies and persons consulted during
the consideration process. DOT Order
5610.1C (‘‘Procedures for Considering
Environmental Impacts’’) establishes
departmental procedures for evaluation
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of environmental impacts under NEPA
and its implementing regulations.
PHMSA analyzed this IFR in
accordance with NEPA, NEPA
implementing regulations, and DOT
Order 5610.1C. PHMSA has prepared an
environmental assessment (EA) and
determined this action will not
significantly affect the quality of the
human environment. To the extent that
the IFR has impacts on the environment,
these are primarily beneficial ecological
impacts from reducing the likelihood
and consequences of hazardous liquid
spills in coastal areas and the Great
Lakes. A copy of the EA for this action
is available in the docket. PHMSA
invites comment on the environmental
impacts of this IFR.
Executive Order 13211
Executive Order 13211 (‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’) 53 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ That Executive Order
defines a ‘‘significant energy action’’ as
any action by an agency (normally
published in the Federal Register) that
promulgates, or is expected to lead to
the promulgation of, a final rule or
regulation (including a notice of
inquiry, ANPRM, and NPRM) that (1)(i)
is a significant regulatory action under
Executive Order 12866 or any successor
order and (ii) is likely to have a
significant adverse effect on the supply,
distribution, or use of energy; or (2) is
designated by the Administrator of the
Office of Information and Regulatory
Affairs as a significant energy action.
This IFR is a significant action under
Executive Order 12866; however, it is
expected to have an annual effect on the
economy of less than $100 million.
Further, this IFR is not likely to have a
significant adverse effect on supply,
distribution, or energy use, as further
discussed in the RIA. Further, OIRA has
not designated this IFR as a significant
energy action.
Executive Order 13609 and
International Trade Analysis
Executive Order 13609 (‘‘Promoting
International Regulatory
Cooperation’’) 54 requires agencies
consider whether the impacts associated
with significant variations between
domestic and international regulatory
approaches are unnecessary or may
impair the ability of American business
to export and compete internationally.
In meeting shared challenges involving
health, safety, labor, security,
environmental, and other issues,
international regulatory cooperation can
identify approaches that are at least as
protective as those that are or would be
adopted in the absence of such
cooperation. International regulatory
cooperation can also reduce, eliminate,
or prevent unnecessary differences in
regulatory requirements.
Similarly, the Trade Agreements Act
of 1979 (Pub. L. 96–39), as amended by
the Uruguay Round Agreements Act
(Pub. L. 103–465), prohibits Federal
agencies from establishing any
standards or engaging in related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. For purposes of these
requirements, Federal agencies may
participate in the establishment of
international standards, so long as the
standards have a legitimate domestic
objective, such as providing for safety,
and do not operate to exclude imports
that meet this objective. The statute also
requires consideration of international
standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the
establishment of international standards
to protect the safety of the American
public. PHMSA has assessed the effects
of the IFR and determined that it will
not cause unnecessary obstacles to
foreign trade.
List of Subjects in 49 CFR Part 195
Pipeline safety, Pipelines, Oil
pollution.
In consideration of the foregoing,
PHMSA is amending 49 CFR part 195 as
follows:
PART 195—TRANSPORTATION OF
HAZARDOUS LIQUIDS BY PIPELINE
1. The authority citation for part 195
continues to read as follows:
■
Authority: 30 U.S.C. 185(w)(3), 49 U.S.C.
5121, 60101 et seq., and 49 CFR 1.97.
2. Amend § 195.6 as follows:
a. In paragraph (b)(4), remove the
word ‘‘or’’ at the end;
■ b. In paragraph (b)(5), remove the
period at the end and add in its place
‘‘; or’’;
■ c. Add paragraphs (b)(6) and (7);
■ d. Revise paragraph (c) introductory
text; and
■ e. In paragraph (c) add definitions for
the terms ‘‘certain coastal waters’’ and
‘‘coastal beach’’ in alphabetical order.
The additions and revision read as
follows:
■
■
§ 195.6
Unusually Sensitive Areas.
*
*
*
*
*
(b) * * *
(6) A coastal beach; or
(7) Certain coastal waters.
(c) Definitions used in this part—
*
*
*
*
*
Certain coastal waters means the
territorial sea of the United States; the
Great Lakes and their connecting waters;
and the marine and estuarine waters of
the United States up to the head of tidal
influence.
*
*
*
*
*
Coastal beach means any land
between the high- and low-water marks
of certain coastal waters.
*
*
*
*
*
Issued in Washington, DC, on December
16, 2021, under authority delegated in 49
CFR 1.97.
Tristan H. Brown,
Deputy Administrator.
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Agencies
[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73173-73186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27751]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 195
[Docket No. PHMSA-2017-0152; Amdt. No. 195-104]
RIN 2137-AF31
Pipeline Safety: Unusually Sensitive Areas for the Great Lakes,
Coastal Beaches, and Certain Coastal Waters
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: PHMSA is amending the pipeline safety regulations to
explicitly state that certain coastal waters, the Great Lakes, and
coastal beaches are classified as unusually sensitive areas for the
purpose of compliance with the hazardous liquid integrity management
regulations. This amendment implements mandates contained in the
Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES)
Act of 2016, as amended by the PIPES Act of 2020. A hazardous liquid
pipeline that could affect these newly designated areas must be
included in an operator's integrity management program.
DATES: The effective date of the interim final rule is February 25,
2022. Submit comments by February 25, 2022.
ADDRESSES: You may submit comments, identified by Docket No. PHMSA-
2017-0152, by any of the following methods:
E-Gov Web: https://www.regulations.gov. This site allows
the public to enter comments on any Federal Register notice issued by
any agency. Follow the online instructions for submitting comments.
Mail: Docket Management System: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery: DOT Docket Management System: West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9:00
a.m. and 5:00 p.m. ET, Monday through Friday, except Federal holidays.
[[Page 73174]]
Fax: 202-493-2251.
Instructions: Identify the Docket No. PHMSA-2017-0152, at
the beginning of your comments. If you submit your comments by mail,
submit two copies. If you wish to receive confirmation that PHMSA
received your comments, include a self-addressed stamped postcard.
Internet users may submit comments at https://www.regulations.gov.
Note: All comments received are posted without edits to
https://www.regulations.gov, including any personal information
provided. Please see the Privacy Act heading below.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT
solicits comments from the public to better inform its rulemaking
process. DOT posts these comments, without edit, including any personal
information the commenter provides, to www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at www.dot.gov/privacy.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments in response to this notice contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this notice, it is important that you clearly designate
the submitted comments as CBI. Pursuant to 49 Code of Federal
Regulations (CFR) 190.343, you may ask PHMSA to provide confidential
treatment to information you give to the agency by taking the following
steps: (1) Mark each page of the original document submission
containing CBI as ``Confidential;'' (2) send PHMSA a copy of the
original document with the CBI deleted along with the original,
unaltered document; and (3) explain why the information you are
submitting is CBI. Submissions containing CBI should be sent to Sayler
Palabrica, 1200 New Jersey Avenue SE, DOT: PHMSA--PHP-30, Washington,
DC 20590-0001. Any commentary PHMSA receives that is not specifically
designated as CBI will be placed in the public docket.
Docket: For access to the docket to read background
documents or comments received, go to https://www.regulations.gov.
Follow the online instructions for accessing the dockets.
Alternatively, you may review the documents in person at the street
address listed above.
FOR FURTHER INFORMATION CONTACT: Sayler Palabrica by phone at 202-744-
0825 or via email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Hazardous Liquid Integrity Management
III. National Pipeline Mapping System
IV. Consequences of Hazardous Liquid Pipeline Spills in Coastal
Areas and the Great Lakes
V. Legislative and Administrative History
VI. Summary of Amendments
VII. Effective Date and Comments
VIII. Good Cause Exception
IX. Regulatory Analyses and Notices
I. Introduction
PHMSA issues this interim final rule (IFR) to satisfy mandates
within the PIPES Act of 2016 (Pub. L. 114-183) and the PIPES Act of
2020 (Pub. L. 116-260) to expand application of PHMSA's integrity
management (IM) requirements to approximately 2,905 additional miles of
hazardous liquid and carbon dioxide pipelines \1\ located within or
that could affect the Great Lakes, coastal beaches, or ``certain
coastal waters.'' The IFR will provide enhanced protection from
hazardous liquid pipeline accidents similar to the 2010 Marshall, MI
and the 2015 Refugio Beach, CA oil spills, and ensure that events like
the anchor strike that damaged Enbridge's Line 5 in the Straits of
Mackinac are promptly identified and remediated before they result in
environmental damage.
---------------------------------------------------------------------------
\1\ Hereinafter, references to ``hazardous liquid'' pipelines
will refer to both hazardous liquid and carbon dioxide pipelines for
simplicity, as they are both governed by 49 CFR part 195.
---------------------------------------------------------------------------
Hazardous liquid pipelines that could affect a high consequence
area (HCA) are subject to additional safety requirements. Specifically,
such pipelines must be included in an IM program. An HCA is defined in
49 CFR 195.450 as a commercially navigable waterway, a high population
area, an other populated area, or an unusually sensitive area (USA) as
defined in Sec. 195.6. Section 195.6 identifies two types of USAs,
``USA drinking water resources'' and ``USA ecological resources.''
Every USA is, therefore, also an HCA. Under Sec. 195.452, an operator
of a hazardous liquid pipeline that is located in a USA, or in an area
where a release could affect a USA, is required to comply with IM
requirements. Section 19 of the PIPES Act of 2016 amended 49 U.S.C.
60109(b)(2) and directed PHMSA to revise the definition of a USA in
Sec. 195.6(b) to explicitly state that the Great Lakes, coastal
beaches, and marine coastal waters are USA ecological resources.
Congress further clarified this mandate in Section 120 of the PIPES Act
of 2020 (division R of the Consolidated Appropriations Act of 2021,
Pub. L. 116-260). With this clarification, the PIPES Act of 2020
introduced and defined the term ``certain coastal waters'' to replace
the undefined term ``marine coastal waters.'' Congress defined
``certain coastal waters'' as the ``territorial sea of the United
States; the Great Lakes and their connecting waters; and the marine and
estuarine waters of the United States up to the head of tidal
influence.'' Furthermore, Congress defined the term ``coastal beach''
as ``any land between the high- and low-water marks of certain coastal
waters.'' This IFR incorporates these terms and the statutory
definitions into Sec. 195.6, as directed by Congress.
PHMSA maintains a map of HCAs, excluding proprietary or security
sensitive information, in the National Pipeline Mapping System (NPMS)
pursuant to 49 U.S.C. 60132(d). PHMSA intends to map ``certain coastal
waters'' and ``coastal beaches'' as a single data layer within the
NPMS. PHMSA will generate this map based on a combination of geographic
information system (GIS) data from the National Oceanic and Atmospheric
Administration (NOAA) Clean Water Act \2\ dataset, U.S. Environmental
Protection Agency (EPA) Estuary Data Mapper,\3\ and the NOAA Sea Level
Rise Viewer.\4\ Each of these datasets are generated by expert
scientific agencies of the Federal government and are available on the
internet for public viewing. These datasets are further described in
section VI of this IFR. PHMSA seeks comments on the use of these
datasets to represent the location of the statutory definitions of
``certain coastal waters'' and ``coastal beaches'' in the NPMS.
---------------------------------------------------------------------------
\2\ NOAA Office for Coastal Management, ``Clean Water Act
Dataset'' (Nov. 9, 2016), https://catalog.data.gov/dataset/clean-water-act (last accessed October 13, 2021).
\3\ EPA, ``High End Scientific Computing--Estuary Data Mapper
Dataset'' (Dec. 7, 2020), https://www.epa.gov/hesc/estuary-data-mapper-edm (last accessed June 21, 2021).
\4\ NOAA Office for Coastal Management, ``Sea Level Rise Viewer
Dataset'' (July 2020), https://catalog.data.gov/dataset/noaa-digital-coast-sea-level-rise-and-coastal-flooding-impacts-viewer
(last accessed October 13, 2021).
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While the primary effect of the IFR is expanding the hazardous
liquid pipeline mileage subject to IM program requirements, defining
new USAs also affects the requirements for certain pipelines in rural
areas. Proximity to a USA also determines if an onshore rural gathering
line is a regulated rural gathering line subject to safety requirements
described in Sec. 195.11(b). Additionally, a pipeline categorized as a
[[Page 73175]]
Category 3 rural low-stress pipeline could become a Category 1 or
Category 2 pipeline if it is located within \1/2\ mile of a USA.
PHMSA is not changing the definition of ``offshore'' in Sec. Sec.
192.3 or 195.2 as a part of this IFR. Those sections define
``offshore'' to mean beyond the line of ordinary low water along that
portion of the coast of the United States that is in direct contact
with the open seas and beyond the line marking the seaward limit of
inland waters. The new USAs defined in Sec. 195.6 do not affect the
definition of ``offshore'' in Sec. Sec. 192.3 or 195.2. Even if data
used to map the new USAs refer to ``offshore'' areas as defined or
designated by a separate statute, such as the Submerged Lands Act (43
U.S.C. 1301 et seq.), the regulatory definition of ``offshore'' in
Sec. Sec. 192.3 and 195.2 is distinct from these other statutes and
will remain unchanged. In other words, the definitions of ``coastal
beach'' and ``certain coastal waters'' exist independently of the
definition of ``offshore'' in Sec. Sec. 192.3 or 195.2. A pipeline
could be located within certain coastal waters and be either
``onshore'' or ``offshore'' under Sec. Sec. 192.3 and 195.2.
Accordingly, altering the definition of ``offshore'' is beyond the
scope of this IFR.
II. Hazardous Liquid Integrity Management
The objective of the hazardous liquid IM requirements at Sec.
195.452 is to reduce the risks of pipeline spills in areas where a
release could have significant consequences. In a series of final rules
published between 2000 and 2002, PHMSA's predecessor agency, the
Research and Special Programs Administration, promulgated regulations
that defined HCAs and required operators to develop and implement IM
programs for each hazardous liquid pipeline that could affect an HCA in
the event of a release. HCAs are defined in Sec. 195.450 and represent
areas where a release could have significant adverse consequences to
human health and safety, the environment, and commercial navigation.
The IM requirements that operators must implement to protect HCAs are
specified in Sec. 195.452.
IM requirements for hazardous liquid pipelines were implemented in
four final rules. The first final rule was ``Pipeline Integrity
Management in High Consequence Areas (Hazardous Liquid Operators with
500 or More Miles of Pipeline),'' \5\ followed by ``Areas Unusually
Sensitive to Environmental Damage,'' \6\ and ``Pipeline Integrity
Management in High Consequence Areas (Hazardous Liquid Operators with
Less Than 500 Miles of Pipelines).'' \7\ PHMSA made updates to these
requirements in a 2019 final rule titled ``Safety of Hazardous Liquid
Pipelines.'' \8\ These rules established a regulatory framework focused
on risk identification, assessment, and mitigation. PHMSA's IM
regulations require operators of pipelines located in areas where a
release could affect an HCA to take additional steps to address threats
to the integrity of those pipelines by operating and maintaining those
pipelines in accordance with an effective IM program. These measures
require operators to devote additional analysis, assessment, and
remediation resources to protect HCAs from pipeline releases that could
adversely affect human health and safety, cause environmental damage,
and disrupt commercial navigation.
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\5\ 65 FR 75377 (Dec. 1, 2000).
\6\ 64 FR 9532 (Feb. 8, 2001).
\7\ 67 FR 2136 (Jan. 16, 2002).
\8\ 84 FR 52260 (Oct. 1, 2019).
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A. High Consequence Areas
Section 195.450 of the existing hazardous liquid pipeline safety
regulations defines an HCA as: (1) A commercially navigable waterway,
which means a waterway where a substantial likelihood of commercial
navigation exists; (2) a high population area, which means an urbanized
area, as defined and delineated by the U.S. Census Bureau, that
contains 50,000 or more people and has a population density of at least
1,000 people per square mile; (3) an other populated area, which means
a place, as defined and delineated by the U.S. Census Bureau, that
contains a concentrated population, such as an incorporated or
unincorporated city, town, village, or other designated residential or
commercial area; or (4) an unusually sensitive area, which is defined
in Sec. 195.6 to be a drinking water or ecological resource area that
is unusually sensitive to environmental damage from a hazardous liquid
pipeline release. Section 195.452(d)(2) requires operators to
incorporate newly identified HCAs into their baseline assessment plans
within one year from the date the area is identified, and complete a
baseline assessment of any pipeline that could affect the newly
identified HCA within 5 years from the date the area is so designated.
B. Unusually Sensitive Areas
Section 195.6 defines a USA as a drinking water or ecological
resource area that is unusually sensitive to environmental damage from
a hazardous liquid pipeline release. The regulatory definition of USA
elaborates that a drinking water resource generally refers to a source
of drinking water (e.g., a surface water intake, a source water
protection area for wells, or a recharge area for a karst aquifer) for
a community water system, or a non-transient, non-community water
system (e.g., a school or factory) with no adequate alternative supply
of drinking water. The definition of a USA ecological resource includes
areas containing one or more critically imperiled species or ecological
communities; a multi-species assemblage area; a migratory waterbird
concentration area; and an area containing an imperiled, threatened,
endangered species, depleted marine mammal species, or an imperiled
ecological community containing species with a limited range.
C. Integrity Management Requirements
As described above, every USA is an HCA, and a hazardous liquid
pipeline that could affect an HCA must be included in an operator's
hazardous liquid IM program. Section 195.452(b) requires an operator to
develop and follow a written IM program. Section 195.452(f) requires
that a hazardous liquid pipeline IM program include each of the
following elements:
A process for identifying pipelines that could affect an
HCA, including USAs (see Sec. Sec. 195.6, 195.450, Appendix C to part
195, ``Guidance for Implementation of an Integrity Management
Program'');
A plan for scheduling and performing baseline assessments
(Sec. 195.452(c));
An analysis of pipeline safety risks that integrates all
available information about pipeline integrity and potential
consequences (Sec. 195.452(g));
Criteria for performing remedial action in response to
pipeline integrity issues identified during assessments or other
analysis (Sec. 195.452(h));
A continuous process for scheduling, performing, and
interpreting integrity assessments and evaluations (Sec. 195.452(j));
Identification of ``preventative and mitigative measures''
to protect the pipeline from identified integrity threats (Sec.
195.452(i));
Procedures for evaluating the effectiveness of the IM
program (Sec. 195.452(k)); and
A process to ensure integrity assessment results and
information analysis is performed by qualified personnel (Sec.
195.452(f)(8)).
[[Page 73176]]
When an operator determines that a pipeline segment could affect an
HCA, it must integrate information about that segment, including
information about potential consequences, into its risk analysis and
add the segment to the baseline assessment plan. The minimum data
attributes operators are required to consider are listed in Sec.
195.452(g)(1). This includes information about the pipeline itself;
excavation damage threats; information about the potential impacts of a
release on an HCA; and data from integrity assessments, cathodic
protection surveys, patrols, and other maintenance and surveillance
tasks. This analysis is used to prioritize and schedule integrity
assessments and identify preventative and mitigative measures.
If a pipeline segment could affect a newly identified USA as a
result of this IFR, the operator must include that segment in their IM
program and periodically assess the integrity of that segment. Section
195.452(d)(2) requires an operator to add pipelines that cross or could
affect new HCAs into their baseline assessment plan within 1 year of
obtaining that new HCA information and complete the baseline assessment
within 5 years of that date. Section 195.452(c)(1)(i) requires that the
baseline assessment be done with an in-line inspection tool unless
construction or operational factors make an in-line inspection
impracticable. The operator must select an in-line inspection tool, or
combination of tools, capable of detecting, at a minimum, corrosion and
dents. If cracking is identified as a probable integrity threat, then
the operator must select a tool or combination of tools capable of
detecting cracks. If an in-line inspection is impracticable, an
operator may perform a baseline assessment using a pressure test,
external corrosion direct assessment, or other technology with advance
notification to PHMSA.
After the baseline assessment, a segment that could affect an HCA
must be reassessed regularly. The assessment schedule for both the
baseline assessment and reassessments must be established by
considering all risk factors, including, at a minimum, each of the
factors listed in Sec. 195.452(e). Section 195.452(j)(3) requires
operators to continually assess the pipeline's integrity at no greater
than 5-year intervals, not to exceed 68 months, except as provided in
Sec. 195.452(j)(4). If the operator detects a defect during an
assessment, the operator must remediate it pursuant to the requirements
in Sec. 195.452(h) and the operator's procedure. That paragraph
requires an operator to establish repair criteria that meet minimum
standards for remediation methods and repair of various repair
conditions.
In addition to assessment and repair requirements, operators must
use a risk analysis to identify preventative and mitigative measures
necessary to avert negative impacts in HCAs. Examples of preventative
and mitigative measures identified in Sec. 195.452(i) include adopting
damage prevention best practices, improving cathodic protection
monitoring, shortening inspection intervals, installing emergency flow
restricting devices,\9\ installing leak detection equipment, or
providing enhanced response training to operator personnel and
emergency responders. Operators must implement preventative and
mitigative measures based on an analysis of the likelihood of a
pipeline release and the potential consequences of the release. The
minimum elements of this risk analysis are described in Sec.
195.452(i)(2). Pipelines that could affect an HCA must have a means to
detect leaks on the pipeline system(s) pursuant to Sec. 195.452(i)(3),
though Sec. Sec. 195.134 and 195.444 require leak detection systems on
hazardous liquid pipeline systems outside of HCAs as well.
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\9\ A check valve or a remote control valve as defined in Sec.
195.450.
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III. National Pipeline Mapping System
A. NPMS Introduction
PHMSA maintains a map of HCAs in the NPMS pursuant to 49 U.S.C.
60132(d). The NPMS includes GIS resources that allow users to view
pipeline maps and pipeline operations information, depending on the
profile of the user. The NPMS contains locations and information about
gas transmission and hazardous liquid pipelines and liquefied natural
gas (LNG) plants under PHMSA jurisdiction. The NPMS also contains
hazardous liquid pipeline HCA data \10\ and voluntarily submitted
breakout tank \11\ data. NPMS data for hazardous liquid pipeline
facilities include geospatial data, attribute data for pipeline
segments, metadata, and operator contact information. Operators are
required to submit NPMS data annually or review their current data in
the NPMS to confirm it is still accurate pursuant to Sec. 195.61.
PHMSA processes operator data submissions year-round and the online
mapping applications and resources are updated approximately every
other month. These data and submission requirements are described in
further detail in Sec. 195.61 and the Operator Standards Manual,
available on the NPMS web page.\12\
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\10\ While HCAs for hazardous liquid pipelines are defined areas
under Sec. 195.450, HCAs for gas pipelines are identified under
Sec. 192.903 based on the location, diameter, and maximum allowable
operating pressure of the pipeline and the pipeline's proximity to
nearby structures. See also 49 U.S.C. 60109(b).
\11\ A breakout tank is a storage tank in a hazardous liquid
pipeline system used as part of the transportation of hazardous
liquids by pipeline. See Sec. 195.2.
\12\ PHMSA, ``National Pipeline Mapping System Standards for
Pipeline, Liquefied Natural Gas and Breakout Tank Farm Operator
Submissions'' (Oct. 2017). https://www.npms.phmsa.dot.gov/Documents/Operator_Standards.pdf. (last accessed June 21, 2021).
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The NPMS contains information from over 1,500 operators totaling
over 225,000 miles of hazardous liquid pipelines and over 310,000 miles
of gas transmission pipelines. Operators also voluntarily provided
information on the location of 3,476 breakout tanks out of 8,412
reported in annual reports for the 2019 reporting year. PHMSA and
others use NPMS data for a wide variety of purposes, including
emergency response, inspection planning, risk assessment, regulatory
support, spatial analysis, map production, public awareness, and
education.
B. NPMS Access to Geospatial Data
The NPMS website is structured into three pages by user-type to
facilitate access to available information and resources. The pages
include: (1) The Government Official Portal, intended for government
officials at the local, State, or Federal level, including emergency
responders and tribal governments; (2) the Operator Portal, intended
for employees of pipeline operators who contribute data to the NPMS,
including operators of gas transmission or hazardous liquid pipelines,
breakout tanks, and LNG plants under PHMSA jurisdiction; \13\ and (3)
the General Public Portal, available for members of the public. The
General Public Portal includes information about gas transmission and
hazardous liquid pipelines, an operator directory, and the NPMS Public
Map Viewer for exploring or printing NPMS maps on a per-county basis.
The General Public Portal also has maps of HCAs. This includes the
location of high-population areas derived from U.S. Census Bureau data
and commercially navigable waterways from the U.S. Army Corps of
Engineers' National Waterway Network. As an initial step to implement
Section 19 of the PIPES Act of 2016, PHMSA, in 2019, incorporated GIS
data for the Great Lakes USA ecological resource to the NPMS based on
the definition of the Great Lakes from 33 U.S.C. 1268 and
[[Page 73177]]
geospatial information from NOAA's U.S. State Submerged Lands
dataset.\14\ NOAA updates this dataset as needed to ensure accuracy in
depicting Great Lakes shorelines and last updated the dataset in 2016.
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\13\ Operators can also use the Operator Portal to access
information regarding NPMS data submission requirements, procedures,
and HCA GIS data layers to support IM program planning.
\14\ PHMSA, Press Release, ``PHMSA ID's Great Lakes as an
Ecological Resource in NPMS'' (Oct. 21, 2019), https://www.phmsa.dot.gov/news/phmsa-ids-great-lakes-ecological-resource-npms.
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In addition to the three user-type pages discussed above, PHMSA has
also developed the Pipeline Information Management Mapping Application
(PIMMA). PIMMA is a password-protected, web-based mapping application
limited to government officials and pipeline operators. Each government
user only has access to the maps of pipelines in their area of
jurisdiction, and each operator user only has access to maps of the
pipelines they operate. Government officials or operators can apply for
PIMMA access or log in to PIMMA from the NPMS homepage. Information on
how to use and access PIMMA is available within the Government Official
and Operator Portals.
Government officials and operators can request access to pipeline
facility GIS data from the NPMS for use in their own GIS. This option
allows government officials and operators to produce maps and conduct
analyses. Government officials and operators may also apply for access
to the NPMS pipeline facility GIS data in their area of jurisdiction or
for the pipeline facilities they operate. Hazardous liquid operators
may only access USA GIS data for the States in which they operate or
are constructing hazardous liquid pipelines. Except for HCA and USA GIS
data available on the General Public Portal (i.e., populated areas,
commercially navigable waterways, and the Great Lakes), all GIS data
from the NPMS is considered for official use only and requires an
application process that can include an official request letter from a
pipeline company manager. Detailed instructions for access to GIS data
from the NPMS are available on the NPMS website at https://www.npms.phmsa.dot.gov/. PHMSA conducts reviews of publicly available
dataset updates every two years to maintain HCA data accuracy. PHMSA
announces updates via emails to pipeline operators and on the NPMS
website.
IV. Consequences of Hazardous Liquid Pipeline Spills in Coastal Areas
and the Great Lakes
Any release of petroleum, petroleum products, or other hazardous
liquids can adversely affect human health and safety, threaten wildlife
and habitats, impede commercial navigation, or damage personal or
commercial property. Spills into bodies of water present increased risk
because the water and water currents act as conveyances to increase the
spread of the spill. These factors greatly complicate response,
recovery, and remediation efforts for spills affecting bodies of water
and intertidal land along the shoreline. Major oil spills within the
Great Lakes, shorelines, or coastal waters would have extreme,
negative, and persistent impacts on shoreline ecology, benthic
communities at the base of the ecosystem, fisheries, human health, and
the economy of coastal communities. This IFR takes immediate action
necessary to ensure that operators take appropriate steps to protect
the Great Lakes, coastal communities, and marine waters from the
impacts of hazardous liquid spills into these fragile environments.
Although prediction of the precise number of avoided accidents realized
by this rulemaking's extension of IM requirements to currently
unregulated pipelines is challenging, the historical examples below
underscore the magnitude of adverse environmental consequences for
coastal beaches and coastal waters in the event of a significant
pipeline accident.
The most recent significant pipeline accident that affected coastal
beaches and coastal waters was a 2015 oil spill where a pipeline
operated by Plains Pipeline, LP (Plains) failed due to external
corrosion.\15\ While this rupture occurred in an HCA and therefore was
subject to PHMSA's IM requirements,\16\ it highlights many of the
probable impacts of oil pipeline spills into coastal areas. The rupture
released 2,934 barrels (approximately 123,000 gallons) of heavy crude
oil near Santa Barbara, California. Approximately 500 barrels (21,000
gallons) of crude oil reached the Pacific Ocean near Refugio State
Beach. On March 13, 2020, the U.S. Department of Justice (DOJ)
announced a settlement that required Plains pay over $60 million in
penalties, clean-up costs, and natural resources assessment costs and
damages.\17\ This spill is estimated to have contaminated over 3,000
acres of shoreline, subtidal, and benthic habitats, and resulted in the
injury or death to hundreds of birds and marine mammals.\18\ In
addition to the severe ecological impacts, the spill itself and cleanup
activities significantly limited recreational and commercial use of the
oil contaminated coastal beaches and surrounding areas.
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\15\ PHMSA, ``Failure Investigation Report: Plains Pipeline, LP,
Line 901 Crude Oil Release, May 19, 2015--Santa Barbara County,
California'' (May 2016), https://www.phmsa.dot.gov/foia/plains-pipeline-lp-line-901-failure-investigation-report (last accessed
June 21, 2021).
\16\ PHMSA and others brought a civil suit against Plains
alleging, inter alia, that numerous violations of PHMSA's IM
requirements contributed to the accident. See United States of
America, et al. v. Plains All America Pipeline, L.P., Docket No.
2:20-cv-02415, Complaint at ]] 130-158 (C.D. Cal. Mar. 13, 2020).
Plains acceded to a consent decree resolving those violations. See
United States of America, et al. v. Plains All America Pipeline,
L.P., Docket No. 2:20-cv-02415, Consent Decree at ] 70 (C.D. Cal.
Mar. 13, 2020).
\17\ DOJ, ``U.S. Pipeline Company to Modify its National
Operations to Implement Safeguards Resulting from Oil Spill'' (Mar.
13, 2020), https://www.justice.gov/opa/pr/us-pipeline-company-modify-its-national-operations-implement-safeguards-resulting-oil-spill (last accessed April 2, 2021).
\18\ California Department of Fish and Wildlife et. al.,
``Refugio Beach Oil Spill: Draft Damage Assessment and Restoration
Plan/Environmental Assessment'' (April 22, 2020), https://wildlife.ca.gov/OSPR/NRDA/Refugio (last accessed June 21, 2021).
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Another accident demonstrating the significant adverse
environmental consequences of pipeline spills into bodies of water was
the rupture of Enbridge Line 6B, which occurred on July 26, 2010, near
the town of Marshall, Michigan. While this spill occurred on a segment
of pipe within an HCA \19\ and along an inland, freshwater river,
rather than along the coast, the adverse impacts resulting from this
spill are similar to what could occur if a spill occurred in connecting
waters of the Great Lakes estuaries, and other marine waters up to the
head of tidal influence, which are specifically addressed in this rule.
This accident occurred when a 30-inch pipeline ruptured, spilling
approximately 20,000 barrels of diluted bitumen into the Kalamazoo
River and surrounding wetlands. The release contaminated 40 miles of
the Kalamazoo River, and cleanup efforts were complicated by the
propensity for diluted bitumen and other heavy crude oils to sink. As a
result of the spill, the impacted segment of the river remained closed
for public, recreational use for nearly two years.\20\ Environmental
impacts continued in the years
[[Page 73178]]
following the spill, including decreases in fish abundance and variety
in downstream areas until at least 2013.\21\ Enbridge agreed to pay
over $1 billion in cleanup costs and $177 million in a settlement with
DOJ, including $61 million in penalties.\22\ Other events occurring on
pipelines in or that could affect HCAs, such as a 2018 anchor strike
that dented the submerged Enbridge Line 5 in the Straits of
Mackinac,\23\ and the October 2021 discovery of a large crude oil
release from a pipeline near Huntington Beach, CA,\24\ further
highlight the damage that can be done by a pipeline spill into the
Great Lakes or other coastal waters.
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\19\ Although this pipeline was subject to PHMSA's IM
requirements, the operator's non-compliance with those requirements
was a cause of the accident. While operator error is always
possible, PHMSA believes that the inclusion of these requirements in
this rulemaking will reduce the risk of future accidents. See PHMSA,
CPF No. 3-2012-5013, In the Matter of Enbridge Energy Limited
Partnership (Sept. 7, 2012), https://primis.phmsa.dot.gov/comm/reports/enforce/documents/320125013/320125013_Final%20Order_09072012.pdf.
\20\ Klug, Fritz, ``Kalamazoo River reopens to the public, 2
years after Enbridge oil spill in Michigan,'' Michigan Live (Jan.
20, 2019), https://www.mlive.com/news/kalamazoo/2012/06/see_what_sections_of_the_kalam.html.
\21\ U.S. Fish and Wildlife Service et al., ``Final Damage
Assessment and Restoration Plan/Environmental Assessment for the
July 25-26, 2010 Enbridge Line 6B Oil Discharges near Marshall, MI''
(Oct. 2015), https://www.fws.gov/midwest/es/ec/nrda/MichiganEnbridge/#nrdar.
\22\ DOJ, ``United States, Enbridge Reach $177 Million
Settlement After 2010 Oil Spills in Michigan and Illinois'' (July
20, 2016), https://www.justice.gov/opa/pr/united-states-enbridge-reach-177-million-settlement-after-2010-oil-spills-michigan-and
(last accessed July 26, 2021).
\23\ National Transportation Safety Board, MAB-19/12, ``Marine
Accident Brief, Anchor Contact of Articulated Tug and Barge Clyde S
VanEnkevort/Erie Trader with Underwater Cables and Pipelines'' (May
21, 2018), https://www.ntsb.gov/investigations/AccidentReports/Pages/MAB1912.aspx.
\24\ PHMSA, CPF No. 5-2021-054-CAO, Corrective Action Order
issued to Amplify Energy Corp. (Oct. 4, 2021), https://www.phmsa.dot.gov/news/phmsa-corrective-action-order-amplify-energy-corporation-beta-offshore.
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Non-pipeline spills in coastal areas have also resulted in
widespread environmental damage and economic impacts. In 1969, an
offshore oil production platform experienced a blowout off the coast of
Santa Barbara, California. That accident contaminated 35 miles of
California shoreline.\25\ That event was the largest marine oil spill
in U.S. history until the grounding of the crude oil tanker, Exxon
Valdez, in Prince William Sound, Alaska in 1989,\26\ and later the
blowout of the Deepwater Horizon drilling rig in the Gulf of Mexico in
2010.\27\ Each of these events led to widespread harm to marine and
coastal ecosystems, and economic harm to coastal resources such as
fisheries and recreational areas.
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\25\ Mai-Duc, Christine, ``The 1969 Santa Barbara Oil Spill That
Changed Oil and Gas Exploration Forever,'' Los Angeles Times (May
20, 2015), https://www.latimes.com/local/lanow/la-me-ln-santa-barbara-oil-spill-1969-20150520-htmlstory.html.
\26\ EPA, ``Exxon Valdez Spill Profile--U.S. EPA Emergency
Response,'' https://www.epa.gov/emergency-response/exxon-valdez-spill-profile (last accessed June 21, 2021).
\27\ EPA, ``Deepwater Horizon--BP Gulf of Mexico Oil Spill--U.S.
EPA Enforcement,'' https://www.epa.gov/enforcement/deepwater-horizon-bp-gulf-mexico-oil-spill (last accessed June 21, 2021).
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V. Legislative and Administrative History
A. PIPES Act of 2016
With the passage of the PIPES Act of 2016, Congress amended 49
U.S.C. 60109(b) to add ``locations . . . that have been identified as
part of the Great Lakes or have been identified as coastal beaches,
[or] marine coastal waters'' to the list of ``areas where a pipeline
rupture would likely cause permanent or long-term environmental
damage.'' Section 19 of the PIPES Act of 2016 ordered that PHMSA
``revise section 195.6(b) of Title 49, Code of Federal Regulations, to
explicitly state that the Great Lakes, coastal beaches, and marine
coastal waters are USA ecological resources for purposes of determining
whether a pipeline is located in a high consequence area.'' As
described above, these areas will therefore be defined as HCAs, and
operators of hazardous liquid pipelines that could affect such areas
will be required to implement IM programs for those segments.
Based on the 2016 mandate, PHMSA searched for ``locations that have
been identified as part of the Great Lakes or have been identified as
coastal beaches, [or] marine coastal waters.'' During this search,
described in section VI.B, PHMSA used the definition of the Great Lakes
from 33 U.S.C. 1268 and geospatial information from NOAA's U.S. State
Submerged Lands dataset and added the Great Lakes to the NPMS. PHMSA
was unable to locate any existing U.S. statutory or regulatory
provision(s) providing similarly helpful definitions of ``marine
coastal waters'' or ``coastal beaches.'' Due to uncertainty regarding
how to define ``locations . . . that have been identified as . . .
coastal beaches [or] marine coastal waters'' as described in the PIPES
Act of 2016, PHMSA held two public meetings, discussed below, and began
drafting an advance notice of proposed rulemaking to seek public input
on how to best define those terms in part 195 and provide GIS data
representing the location of those areas in the NPMS.
B. Public Meetings
PHMSA held public meetings on November 17, 2017, and June 12, 2019,
to discuss definitions for ``coastal beaches,'' ``marine coastal
waters,'' \28\ and ``the Great Lakes,'' and to identify GIS data
sources to map such features in the NPMS. Both were in-person meetings
in Washington, DC with options for remote participation. Materials
presented during these meetings are available at the web page for each
meeting.\29\ The 2017 meeting included discussions on how PHMSA
currently maps commercially navigable waterways in the Great Lakes.
Representatives from PHMSA, NatureServe, NOAA, the Pipeline Safety
Trust (PST), Phillips 66, Arcadis, and the Coastal and Marine Operators
Pipeline Industry Initiative (CAMO) gave presentations. The meeting
included discussions of potential data sources for shoreline types,
what should be classified as a ``coastal beach,'' and where to define
the landward and seaward extent of ``marine coastal waters.''
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\28\ As described in greater depth below, the PIPES Act of 2020
replaced the term ``marine coastal waters'' with ``certain coastal
waters.''
\29\ Materials from the November 2017 meeting can be found at
https://primis.phmsa.dot.gov/meetings/MtgHome.mtg?mtg=129; materials
from the June 2019 Meeting can be found at https://primis.phmsa.dot.gov/meetings/MtgHome.mtg?mtg=142. Those meeting
materials are also available in the docket for this rulemaking at
https://www.regulations.gov/docket?D=PHMSA-2017-0094.
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The 2019 meeting focused primarily on nine questions that PHMSA
provided to attendees prior to the meeting, which included proposed
definitions for ``locations that have been identified as part of the
Great Lakes, or have been identified as coastal beaches, [or] marine
coastal waters.'' Also discussed was the creation of new USA ecological
resource GIS data based on the proposed definitions. PHMSA developed
the proposed definitions and other questions for the 2019 public
meeting after reviewing comments from the 2017 public meeting, the data
pilot project,\30\ and PHMSA's internal research. Question 9A,
presented to the public meeting participants, included a discussion on
whether PHMSA should use the GIS data depicting the extent of the U.S.
State Submerged Lands dataset to map the Great Lakes and Question 9B
referenced the statutory definition of the Great Lakes found in 33
U.S.C. 1268. PHMSA ultimately determined that the U.S. State Submerged
Lands GIS data was the best mapping source to match the existing Great
Lakes definition and added these data to the NPMS. This change is
described in section VI.B. PHMSA, American Petroleum Institute
(including Plains All American Pipeline, L.P. and Freeman GIS, Inc.),
PST, and the Louisiana Department of Natural Resources each gave
presentations during the 2019 meeting.
[[Page 73179]]
PHMSA requested that attendees post their questions and concerns to the
docket for the meeting. Following the meeting, PHMSA worked to develop
regulatory definitions and data sets addressing the challenges
identified during the meeting and in public comments.
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\30\ After the 2017 public meeting, PHMSA conducted a data pilot
project to identify possible GIS data representing the definitions
from the PIPES Act of 2016. The output of these data analyses are
the suggested GIS data options and sample maps presented at the 2019
public meeting. These are available on the meeting page.
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C. PIPES Act of 2020
The PIPES Act of 2020 eliminated the uncertainty regarding the
undefined terms ``coastal beach'' and ``marine coastal waters,'' as
they appeared in the PIPES Act of 2016. Section 120 of the PIPES Act of
2020 amended Section 19 of the PIPES Act of 2016. Congress eliminated
the term ``marine coastal waters'' and replaced it with ``certain
coastal waters,'' which Congress defined as ``the territorial sea of
the United States; the Great Lakes and their connecting waters; and the
marine and estuarine waters of the United States up to the head of
tidal influence.'' Furthermore, Congress defined ``coastal beach'' as
``any land between the high- and low-water marks of certain coastal
waters.'' Congress directed PHMSA to incorporate those definitions
within its regulations not later than 90 days after the enactment. This
rule therefore incorporates the statutory definitions of ``certain
coastal waters'' and ``coastal beach'' into Sec. 195.6 verbatim.
Nevertheless, PHMSA invites comments on its plan to implement this
mandate in the NPMS, which is described in section VI.
VI. Summary of Amendments
A. Revisions to Sec. 195.6
Pursuant to the plain language of Section 19 of the PIPES Act of
the 2016, as amended by the PIPES Act of 2020, this IFR amends Sec.
195.6 to explicitly state that the Great Lakes, coastal beaches, and
certain coastal waters are USA ecological resources for the purposes of
determining whether a pipeline is in an HCA, as defined in Sec.
195.450. In the IFR, PHMSA has revised Sec. 195.6(c) to include the
terms ``coastal beach'' and ``certain coastal waters,'' employing the
statutorily mandated definitions in the PIPES Act of 2020. The
implementation of these definitions in the NPMS is described in
sections VI.B and VI.C below. This change also influences whether
certain onshore rural gathering lines are regulated under Sec. 195.11.
The requirements for certain onshore rural gathering lines within \1/4\
mile of a USA are described in section VI.D below.
``Certain coastal waters'' are defined in this rule as ``the
territorial sea of the United States; the Great Lakes and their
connecting waters; and the marine and estuarine waters of the United
States up to the head of tidal influence.'' This language mirrors the
definition provided in the PIPES Act of 2020. Pursuant to Presidential
Proclamation 5928,\31\ the territorial sea of the United States extends
12 nautical miles (approximately 13.8 miles) from the baseline of the
United States.\32\ Generally, the baseline is drawn at the line of Mean
Lower Low Water, or the lowest of the two low tides per day averaged
over an 18.6-year period, as determined by NOAA; however, a straight
baseline is allowed in some circumstances.\33\ In other words, the
territorial sea portion of ``certain coastal waters'' extends from
approximately the line of low tide to 12 nautical miles out to sea. The
``marine and estuarine waters of the United States up to the head of
tidal influence'' refers to waters inland of the landward limit of the
territorial sea up to the upstream limit of water affected by the
tide.\34\
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\31\ 54 FR 777 (Jan. 9, 1989).
\32\ Although Presidential Proclamation 5928 contemplated that
an earlier, 3 nautical mile boundary of the ``territorial sea of the
United States'' would continue to apply in some regulatory regimes
(e.g., in connection with the Clean Water Act (CWA, 33 U.S.C. 1251
et seq.)), PHMSA understands a 12 nautical mile boundary to be
appropriate here. As noted elsewhere in this IFR, NOAA--in its
literature and its GIS datasets--describes the ``territorial sea''
as being defined by a 12 nautical mile seaward boundary. Further,
NPMS data yields that PHMSA's oversight of hazardous liquid
pipelines under the pipeline safety regulations currently extends to
a number of offshore pipelines located between the 3 nautical mile
and the 12 nautical mile lines. Therefore, defining the seaward
extent of the ``territorial sea of the United States'' by reference
to a more limiting, 3 nautical mile boundary would not protect the
environmental resources Congress sought to protect when
incorporating that statutory language within the PIPES Act of 2020.
\33\ Westington and Slagel, NOAA, ``U.S. Maritime Zones and the
Determination of the National Baseline'' (2007), https://www.gc.noaa.gov/pdfs/Westington_Slagel_2007.pdf.
\34\ NOAA, ``Definition for `Head of Tide''' in ``NOAA Tides and
Currents Glossary'' https://tidesandcurrents.noaa.gov/glossary.html
(last accessed June 21, 2021).
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As discussed in section VI.B below, PHMSA was able to use the
existing expert agency definition and data to identify the Great Lakes;
PHMSA had already included the Great Lakes and connecting waters in the
NPMS consistent with the existing statutory definition in 33 U.S.C.
1268. The Great Lakes and connecting waters include Lake Ontario, Lake
Erie, Lake Huron (including Lake St. Clair), Lake Michigan, and Lake
Superior, and the connecting channels (Saint Mary's River, Saint Clair
River, Detroit River, Niagara River, and the Saint Lawrence River to
the Canadian border). This GIS dataset similarly relies on NOAA
shoreline data.
The term ``coastal beach'' is defined in the PIPES Act of 2020, and
therefore, defined in this IFR as ``any land between the high- and low-
water marks of certain coastal waters.'' While earlier public meetings
considered how the term ``coastal beach'' might apply to different
shoreline types, the term ``coastal beach'' as defined the PIPES Act of
2020 directed that ``coastal beach'' covers ``any land between the
high- and low-water marks of certain coastal waters,'' meaning
intertidal land adjoining coastal waters, regardless of geomorphologic
characteristics. Further, the Great Lakes are considered non-tidal.\35\
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\35\ NOAA, ``Do the Great Lakes Have Tides?'' https://oceanservice.noaa.gov/facts/gltides.html (last accessed June 21,
2021).
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B. The Great Lakes in the NPMS
On October 21, 2019, PHMSA added the Great Lakes as a USA in the
NPMS based on the mandate in Section 19 of the PIPES Act of 2016.\36\
As described above, PHMSA defined the Great Lakes using an existing
statutory definition at 33 U.S.C. 1268. PHMSA then selected
corresponding geospatial information from the NOAA U.S. State Submerged
Lands dataset to map the Great Lakes in the NPMS as a USA ecological
resource based on that definition. PHMSA has not received any feedback
on this approach and has determined that this information is consistent
with the updated mandates in the PIPES Act of 2020, as it includes each
of the Great Lakes and the connecting waters. Nevertheless, PHMSA seeks
comments on the selection of this definition of the Great Lakes and the
mapping data used to represent the location of the Great Lakes.
---------------------------------------------------------------------------
\36\ PHMSA, Press Release, ``PHMSA ID's Great Lakes as an
Ecological Resource in NPMS'' (Oct. 21, 2019), https://www.phmsa.dot.gov/news/phmsa-ids-great-lakes-ecological-resource-npms.
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C. Certain Coastal Waters and Coastal Beaches in the NPMS
As described above, PHMSA maintains GIS data of HCAs, including
USAs, as part of the NPMS. PHMSA intends to map both ``certain coastal
waters'' and ``coastal beaches'' as USAs in a single GIS dataset
available from the NPMS using a composite of the data sets described in
this section. The datasets prepared by the EPA and NOAA described here
are developed through the collection of tidal and environmental data.
These data, collected over years, establishes the location of ``coastal
beaches'' and
[[Page 73180]]
``certain coastal waters'' as those terms were defined by Congress.
``Coastal beaches,'' as defined in the PIPES Act of 2020, extend
from the high water mark to the low water mark, and the territorial sea
portion of certain coastal waters extend from approximately the low
water mars to the seaward extent of the U.S. territorial sea. Thus, the
areas occupied by ``certain coastal waters'' and ``coastal beaches''
are contiguous and may overlap. This means that ``coastal beaches'' and
the ``territorial sea of the United States'' GIS data to be mapped in
the NPMS will cover all areas from near the line of high water to the
seaward limit of the territorial sea of the United States. This entire
area must now be considered as an ecological USA--and by extension, an
HCA--for compliance with the IM requirements.
To provide GIS data representing the location of ``certain coastal
waters'' and ``coastal beaches,'' PHMSA intends to create a single GIS
dataset using a combination of data available from EPA and NOAA.
Specifically, PHMSA intends to use the EPA Clean Water Act data
prepared by NOAA, the EPA Estuary Data Mapper, and the NOAA Sea Level
Rise Mean Higher High Water Data to create a single ``coastal beach''
and ``certain coastal waters'' USA dataset in the NPMS. PHMSA believes
that aggregating these datasets from expert scientific Federal agencies
represents the best-available national data on the location of
``certain coastal waters'' (the territorial sea of the United States,
marine and estuarine waters of the United States up to the head of
tide, and the Great Lakes), and ``coastal beaches'' (land between the
high and low water marks). Each of these parent datasets are prepared
and published by the expert agencies within the Federal government and
are available to the public for download and review. The use of
publicly available data addresses concerns about the availability of
proprietary and security-sensitive information that were raised by the
Pipeline Safety Trust and others during public meetings. PHMSA invites
comments on the use of these datasets to satisfy the requirements of
the PIPES Act of 2020.
PHMSA will use a portion of the GIS data NOAA compiled for EPA in
compliance with the Clean Water Act (CWA) to represent the territorial
sea portion of its new GIS dataset. Like the definition in the PIPES
Act of 2020, the CWA refers to the territorial sea of the United States
and the Great Lakes. The NOAA CWA dataset represents GIS data for the
Great Lakes and connecting waters, as well as waters from the mean
high-water line to the 12 nautical mile line (i.e., the seaward extent
of the U.S. territorial sea per Presidential Proclamation No. 5928) and
the 3 nautical mile line used for certain Federal laws existing on or
before the issuance of Presidential Proclamation No. 5928, including
the CWA. The landward boundary in the CWA dataset is defined by the
NOAA Medium Resolution Shoreline Product \37\ for the contiguous U.S.,
and other Federal data \38\ for the shoreline in Alaska, Hawaii, and
Puerto Rico. For the purposes of identifying the location of ``certain
coastal waters,'' the seaward extent of the U.S. territorial sea is
mapped at the 12 nautical mile line depicted in the NOAA CWA dataset in
accordance with the meaning of that term in Presidential Proclamation
No. 5928 and international law. The NOAA Medium Resolution Shoreline
represents the line of mean high water.\39\ These data are compiled
from official NOAA nautical charts and represents the definitive map of
U.S. maritime boundaries (such as the seaward extent of the U.S.
territorial sea) under U.S. and international law.
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\37\ NOAA, ``NOAA Medium Resolution Shoreline'' (Apr. 7, 2000),
https://shoreline.noaa.gov/data/datasheets/
medres.html#:~:text=Abstract%3A%20NOAA's%20medium%2Dresolution%20shor
eline,set%20created%20for%20general%20use.&text=The%20data%20set%20wa
s%20created,Ocean%20Resources%20Conservation%20and%20Assessment
(last accessed June 21, 2021).
\38\ For more information on these datasets, see the ``Lineage''
section of the metadata for this dataset https://www.fisheries.noaa.gov/inport/item/48856.
\39\ See NOAA, ``Definition of `Mean High Water' in Tides and
Currents Glossary'' https://tidesandcurrents.noaa.gov/glossary.html
(last accessed June 21, 2021).
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While the U.S. territorial sea under Presidential Proclamation No.
5928, as mapped by NOAA, definitively represents the U.S. territorial
sea and the Great Lakes, it does not identify the location of marine
and estuarine waters of the United States up to the head of tidal
influence. In order to accurately represent such waters, PHMSA intends
to include data from the EPA Estuary Data Mapper in the NPMS map of
certain coastal waters and coastal beaches. The Estuary Data Mapper
includes GIS polygon data for approximately 2,000 named estuaries of
the United States. For the purposes of this dataset, EPA defines an
estuary as:
A partially enclosed body of water along the coast where
freshwater from rivers and streams meet and mix with salt water from
the ocean. Estuaries and the lands surrounding them are places of
transition from land to sea, and although influenced by the tides,
they are protected from the full force of ocean waves, winds, and
storms by such landforms as barrier islands or peninsulas.
This definition explicitly references tidal influences. PHMSA
understands the Estuary Data Mapper data represents the most complete
national inventory of estuarine waters. These data are designed to
support environmental science and management efforts and the EPA
National Estuary Program.\40\ The Estuary Data Mapper is a relatively
new GIS product tool, and it is not entirely complete in Alaska,
Hawaii, and some areas of the Pacific Northwest. Nonetheless, during
the course of the development of this document, EPA has reported
ongoing progress in this area.
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\40\ EPA, ``Frequently Asked Questions about Estuary Data
Mapper'' https://www.epa.gov/hesc/frequent-questions-about-estuary-data-mapper-edm (last accessed June 21, 2021).
---------------------------------------------------------------------------
The term ``coastal beaches'' includes all land between the high and
low-water marks. The Medium Resolution Shoreline used in the EPA map of
the U.S. territorial sea represents a location between high and low-
water marks. As stated earlier, the Medium Resolution Shoreline
represents the mean high water of the shore. NOAA defines ``mean high
water'' as ``the average of all high-water heights observed over the
National Tidal Datum Epoch.'' \41\ In contrast, NOAA defines the
``high-water mark'' as ``[a] line or mark left upon tide flats, beach,
or along shore objects indicating the elevation of the intrusion of
high water. The mark may be a line of oil or scum on along shore
objects, or a more or less continuous deposit of fine shell or debris
on the fore shore or berm.'' \42\ Because this physical line changes
with each tidal shift, NOAA measures and records the ``higher high
water'' (HHW), which is the ``higher of the two high waters of a tidal
day where the tide is semidiurnal (occurring twice daily).'' The
average of the HHW values is the tidal datum (i.e., a fixed starting
point) known as the ``mean higher high water'' (MHHW).
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\41\ NOAA, ``Tidal Datums'' https://tidesandcurrents.noaa.gov/datum_options.html (last accessed June 21, 2021).
\42\ NOAA, ``Definition of `High Water Mark' in ``Glossary of
the NOAA Shoreline website'' https://shoreline.noaa.gov/glossary.html (last accessed June 21, 2021).
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As described above, the ``high-water mark'' changes daily because
it is influenced by meteorological, climate, and surf conditions. PHMSA
is not aware of any national data representative of the physical high-
water mark, which is dynamic and changes day to day. In the absence of
this information, PHMSA will use the MHHW GIS data product from NOAA's
Sea Level Rise Viewer to approximate
[[Page 73181]]
the location of the dynamic high-water mark. The NOAA Sea Level Rise
Viewer includes digital elevation models and the NOAA tidal datum of
mean higher high water. In certain locations and in certain
meteorological conditions, the MHHW could be lower than a high-water
mark. Nonetheless, the MHHW is the most accurate dataset that PHMSA is
aware of for identifying the high-water mark and marine and estuarine
waters up to the head of tidal influence. PHMSA acknowledges that MHHW
may not precisely align with the exact physical high-water mark
(indicated by fine debris or scum line) at any given time. In any
event, the IM requirements apply not only to segments of hazardous
liquid pipelines that cross an HCA but also to any pipeline segments
that ``could affect'' an HCA. In determining which segments ``could
affect'' an area, operators need to consider the terrain around the
pipeline and natural forces inherent in the area, including tidal
forces, meteorological conditions, and flood zones, when determining
which pipeline segments could affect an HCA (See section I.B. of
appendix C to part 195).
D. Requirements for Pipelines That Could Affect HCAs
As described in section II, changes to the definition of the term
``USA'' affect the hazardous liquid pipelines subject to IM
requirements. Operators of hazardous liquid pipelines that could affect
the Great Lakes, ``certain coastal waters,'' and ``coastal beaches''
must include those segments in an IM program. Based on a geospatial
analysis using data in the NPMS, PHMSA estimates that 2,905 additional
miles of hazardous liquid pipelines, primarily in states adjoining the
Gulf of Mexico, will be subject to liquid IM requirements due to this
IFR. This estimate reflects segments located within \1/4\ mile of any
of the newly defined USAs but are not located within \1/4\ mile of the
location of existing HCAs described in existing Sec. Sec. 195.6 and
195.450. Based on this analysis, PHMSA anticipates that most affected
operators have an existing IM program and will be able to extend that
plan to include the newly covered segments. This analysis is described
in the RIA for this IFR.
In addition, operators of onshore hazardous liquid pipelines
submerged more than 150 feet below the surface of water that could
affect an HCA must comply with enhanced requirements for submerged
pipelines in self-executing provisions described in Sec. 120(d) of the
PIPES Act of 2020, codified at 49 U.S.C. 60109(g). That section of the
pipeline safety laws (49 U.S.C. 60101 et seq.) requires that operators
perform annual in-line inspections, annual route surveys, and have (and
follow) procedures for assessing the potential impacts from third-party
damage from vessels and maritime equipment, including anchors and
anchor chains.
The presence of a USA also effects which onshore gathering lines
are subject to part 195 safety requirements as regulated rural
gathering lines. Section 195.2 defines a rural area as being outside
the limits of any incorporated or unincorporated city, town, village,
or any other designated residential or commercial area such as a
subdivision, a business or shopping center, or community development.
Currently, an onshore rural gathering line is subject to safety
requirements in Sec. 195.11 if the pipeline has a nominal diameter
from 6\5/8\ inches to 8\5/8\ inches, has a stress level greater than 20
percent of the specified minimum yield strength (or a pressure of 125
pounds per square inch gauge (psig) for non-steel pipe or if the stress
level is not known), and is located within \1/4\-mile of a USA.
Defining new USAs may result in additional pipelines being classified
as regulated rural gathering lines. However, PHMSA expects that the
effect of the IFR on the mileage of onshore regulated rural gathering
lines will be limited since rural gathering lines are not generally
located along the coasts near most of the new USAs established by the
IFR. Further, those rural gathering lines that are near the coasts may
already be subject to part 195 requirements (pursuant to Sec. 195.1)
if they are either located in a non-rural area, cross commercially
navigable waterways, or are located in the inlets of the Gulf of
Mexico.\43\ As discussed in the RIA, PHMSA estimates that 58.5 miles of
currently unregulated rural gathering lines will become regulated, and
that the resulting regulatory burden for those lines will be $63
thousand in the first year of analysis, and $15 thousand in years two
through ten. PHMSA welcomes comment on its assumptions regarding the
mileage and regulatory burden for currently unregulated gathering lines
that become regulated as a result of the IFR, as well as corresponding
safety benefits.
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\43\ PHMSA also notes that gathering lines larger than 8\5/8\
inches are already subject to part 195 safety requirements.
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Rural gathering lines between 6\5/8\ inches and 8\5/8\ inches in
diameter that become regulated rural gathering lines as a result of the
IFR become subject to the requirements listed in Sec. 195.11(b). An
operator of a regulated rural gathering line must comply with reporting
requirements in subpart B of part 195; establish a maximum operating
pressure of the pipeline in accordance with Sec. 195.406; install and
maintain line markers in accordance with Sec. 195.410; establish and
carry out a public education program in accordance with Sec. 195.440;
establish and carry out a damage prevention program in accordance with
Sec. 195.442; comply with corrosion control requirements in subpart H;
establish and carry out a program to identify internal corrosion in
accordance with Sec. 195.11(b)(10); and comply with operator
qualification program requirements in accordance with subpart G to part
195 and Sec. 195.505. A new or replaced regulated rural gathering line
must also comply with the initial design, installation, construction
inspection, and testing requirements in part 195, unless that pipeline
is being converted to service under Sec. 195.5. Pursuant to Sec.
195.11(c), an operator most comply with Sec. 195.11(b)(2)-(11) within
6 months from the date that a new USA has been identified, except for
the requirements for corrosion control, which are subject to the
compliance timelines in part 195, subpart H.
Finally, the part 195 requirements applicable to low-stress
pipelines located in rural areas depend on the pipeline's proximity to
a USA. Section 195.12 defines a low-stress rural pipeline as a line
located in a rural area and having a maximum operating pressure
corresponding to a stress level of 20 percent or less of the specified
minimum yield strength (or if the stress level is unknown, or for non-
steel pipelines, a pressure less than or equal to 125 psig). A rural
low-stress line that is located within \1/2\ mile of a USA (or
alternatively, that could affect an HCA as determined in Sec.
195.452(a)) is a Category 1 or Category 2 rural low-stress line that
must comply with all of the safety requirements in part 195. Other
rural low-stress pipelines not within \1/2\ mile of a USA are Category
3 lines that must comply with all the requirements of part 195 except
the IM program requirements in Sec. 195.452. Pursuant to Sec.
195.12(e), a Category 3 rural low-stress line or any other pipeline
that becomes a Category 1 or Category 2 rural low-stress line must
comply with the IM program requirements within 12 months following the
date the USA is identified (i.e., the effective date of this IFR). IM
program requirements are described in detail above.
Because the IFR expands the scope of USAs, some Category 3 rural
low-stress lines may become Categories 1 or 2 rural low stress lines
and, therefore, would be
[[Page 73182]]
subject to IM program requirements at Sec. 195.452(a). However,
similar to the discussion of onshore regulated rural gathering above
and as explained in the RIA, PHMSA understands relatively few rural
low-stress pipelines will be affected by the IFR. Newly impacted rural
low-stress lines located within \1/4\- mile of the new USAs are
included in the RIA mileage estimate. However, PHMSA did not perform a
separate analysis of rural-low stress lines located between \1/4\ mile
and \1/2\ mile of a newly designated USA. PHMSA expects the (current)
Category 3 pipeline mileage which could be so affected to be minimal
given that much of the rural low-stress lines near a coast would cross
navigable waters and therefore would already be subject to IM program
requirements under Sec. 195.1. However, in 2020, operators reported
only 3,100 miles of rural low-stress hazardous liquid lines total
across all reported categories. Similar to the discussion of regulated
rural gathering lines, much of the pipeline mileage near the new USAs
(which are mostly along the coasts) is already subject to IM program
requirements pursuant to the general applicability of part 195 to
pipelines crossing navigable waters or that are located in the inlets
of the Gulf of Mexico in Sec. 195.1(a). Further, operators of rural
low-stress liquid lines have the option to perform an HCA could-affect
analysis under Sec. 195.452(a) rather than use the \1/2\-mile
criteria.
VII. Effective Date and Comments
This IFR is effective without advance notice and public comment as
the amendments to the CFR in the IFR are not subject to agency
discretion. Section 19 of the PIPES Act of 2016, as amended by the
PIPES Act of 2020 states that the Secretary ``shall revise section
195.6 [. . .] to explicitly state that the Great Lakes, coastal beaches
and certain coastal waters are USA ecological resources.'' The PIPES
Act of 2020 further specifies statutory definitions for each of these
terms. Pursuant to the plain language of the mandates from the PIPES
Act of 2016 and the PIPES Act of 2020, the IFR adopts each of these
statutory definitions into Sec. 195.6 verbatim. While PHMSA has no
discretion regarding the amendments to Sec. 195.6 mandated by the Act,
this IFR invites comments on the national and publicly available GIS
datasets to represent these new Ecological USA definitions in the NPMS.
PHMSA will consider all relevant, substantive comments in this
area. PHMSA encourages interested parties to submit comments that: (1)
Identify the amendments being commented on and the appropriate section
numbers; (2) provide justification for their support or opposition to
the amendments, especially data on safety risks and cost burdens; and
(3) provide specific alternatives if appropriate.
VIII. Good Cause Exception
The Administrative Procedure Act (APA, 5 U.S.C. 551 et seq.)
permits an agency to issue a final rule without first publishing a
proposed rule for public comment when it demonstrates ``good cause''
that notice and comment is ``impracticable, unnecessary, or contrary to
the public interest.'' 5 U.S.C. 552 (b)(3)(B). This exception is
narrow, and PHMSA is proceeding with an IFR only in light of the
specific instructions from Congress in the PIPES Act of 2020 that
render comment both unnecessary and impracticable.
Prior notice and comment are unnecessary for this rulemaking
because Congress, in the PIPES Act of 2020, provided clear, defined
terms and required PHMSA to update its regulations to incorporate those
terms. Specifically, Congress clarified that ``certain coastal waters''
means the territorial sea of the United States, the Great Lakes, and
marine and estuarine waters up to the head of tidal influence. Congress
also clarified which areas must be designated as a ``coastal beach.''
These statutory definitions resolved uncertainties within language in
the PIPES Act of 2016 to expand the hazardous liquid pipelines subject
to IM requirements. Congress did not provide discretion for PHMSA to
adopt the regulatory amendments in this IFR, requiring PHMSA to
``revise Sec. 195.6(b) to explicitly state that the Great Lakes,
coastal beaches, and certain coastal waters are USA ecological
resources for purposes of determining whether a pipeline is in a high
consequence area.''
Notice and comment are also unnecessary because the definitions of
the terms that Congress required PHMSA to include in its regulations
are also further specifically defined by other expert Federal agencies,
as described in the paragraphs that follow.
``The territorial sea of the United States'' has a long-established
meaning based on Presidential Proclamation 5928, international law, and
NOAA data sets. Each of these authorities define and designate the
``territorial sea of the United States,'' as extending 12 nautical
miles (approximately 13.8 miles) from the ``baseline.'' NOAA is
responsible for delineating the ``baseline,'' based on its tidal datum
Mean Lower Low Water, or the lowest of the two low tides per day
averaged over an 18.6-year period.
Next, NOAA has defined the boundaries of ``marine waters of the
United States.'' While the term ``marine waters'' is not specifically
defined in the U.S. Code, NOAA has defined ``marine waters'' as those
waters subject to tidal influence. The seaward boundary of ``marine
waters'' would be the extent of ``the territorial seas of the United
States,'' as described above. The landward boundary of the ``marine
waters'' is designated by NOAA's polygon GIS data identifying the MHHW
values. These values are the averages of daily HHW recordings from NOAA
tide stations over a period of 18.6 years.
EPA defines the boundaries of ``estuarine waters of the United
States.'' The Clean Water Act authorizes EPA to define and map
estuarine resources pursuant to the National Estuary Program provided
for in the Clean Water Act (33 U.S.C. 1330). As described above, EPA
similarly defines estuaries as subject to tidal influence. The EPA has
also made estuary polygon data available in EPA's Estuary Data Mapper
(EDM) that maps approximately 2,000 named estuaries identified using
EPA's Environmental Monitoring and Assessment Program's National
Coastal Condition Assessment.
NOAA has also defined the terms used in Congress' definition for
``coastal beaches.'' The PIPES Act of 2020 defines the term ``coastal
beach'' to mean any land between the high- and low-water marks of
certain coastal waters. As discussed above, NOAA has defined and mapped
the MHHW, which is an authoritative tidal datum for approximating a
``high water mark.'' In contrast, the low water mark need not be
defined for the purposes of the PIPES Act of 2020 because everything
seaward of the high water mark is included in either the ``territorial
sea of the United States,'' or the ``marine and estuarine waters of the
United States up to the head of tidal influence''--terms which, as
explained above, have been defined and mapped by NOAA and EPA.
Given the above, PHMSA has determined that it lacks discretion to
alter or consider alteration of the long-standing definitions or
practical understandings of ``the territorial sea of the United
States,'' ``marine waters of the United States,'' ``estuarine waters of
the United States,'' and ``coastal beaches.'' Similarly, PHMSA lacks
discretion to alter or consider redesignation of the GIS polygons as
depicted in NOAA's Clean Water Act data, the EPA EDM, and the NOAA Sea
Level Rise MHHW Data. Changes to these definitions and designations
would be inaccurate, would cause
[[Page 73183]]
confusion, and would be an unnecessary waste of government resources.
Therefore, a traditional notice and comment rulemaking is unnecessary.
The Congressionally-specified regulatory language, along with an
aggressive Congressional deadline, also render traditional notice and
comment impracticable. In light of the earlier challenges PHMSA faced
in defining and mapping the undefined terms ``marine coastal waters''
and ``coastal beaches,'' Congress in the PIPES Act of 2020 intervened
in a pending PHMSA rulemaking (under the same RIN as this rulemaking)
to ensure PHMSA had the tools--clear, defined terms in place of the
ambiguous language in the PIPES Act of 2016--to resolve the bases for
PHMSA's protracted delay in responding to an earlier rulemaking
mandate. Congress also demanded PHMSA ``complete'' those regulatory
amendments within 90 days of enactment of the PIPES Act of 2020.
Congress' expectations regarding the need for prompt PHMSA action to
complete this rulemaking is understandable given the history of
hazardous liquid pipeline accidents that have affected or threatened
coastal waters and the Great Lakes and other sensitive ecosystems. The
negative environmental and human health impacts of hazardous liquid
releases such as the 2010 Marshall, MI and 2015 Plains accidents
persist for years, even despite best clean-up efforts. The 2018 anchor
strike on Enbridge Line 5 further underscored the urgency of updating
PHMSA's regulatory framework to address those risks. More recently,
members of Congress have also identified the October 2021 discovery of
a large crude oil release from a pipeline near Huntington Beach, CA, as
evidence of the need for prompt PHMSA action to complete this
rulemaking.\44\
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\44\ See Letter from Reps. Graves & Crawford to Acting PHMSA
Administrator Brown (Oct. 14, 2021), https://republicans-transportation.house.gov/news/documentsingle.aspx?DocumentID=405635.
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Further delay of this IFR's regulatory revisions to accommodate
notice and comment procedures would, therefore, frustrate an aggressive
Congressional timeline for prompt completion of the specific regulatory
amendments that Congress understood as being necessary to align PHMSA's
IM regulations with the grave public safety and environmental risks
posed by hazardous liquid lines. For those reasons, traditional notice
and comment procedures are impracticable.
IX. Regulatory Analyses and Notices
Legal Authority for This Rulemaking
This IFR is published under the authority of the Federal Pipeline
Safety Laws. Section 60102 authorizes the Secretary of Transportation
to issue regulations governing the design, installation, inspection,
emergency plans and procedures, testing, construction, extension,
operation, replacement, and maintenance of pipeline facilities. The
Secretary has delegated this authority to the PHMSA Administrator under
49 CFR 1.97. Further, Section 19 of the PIPES Act of 2016, as amended
by the PIPES Act of 2020, requires the Secretary of Transportation to
revise Sec. 195.6 to explicitly state in Sec. 195.6 that the Great
Lakes, certain coastal waters, and coastal beaches are USAs for the
purpose of determining whether a hazardous liquid pipeline is in or
could affect an HCA.
Executive Order 12866 and DOT Policies and Procedures for Rulemaking
Executive Order 12866 (``Regulatory Planning and Review'') \45\
requires that agencies ``should assess all costs and benefits of
available regulatory alternatives, including the alternative of not
regulating.'' Agencies should consider quantifiable measures and
qualitative measures of costs and benefits that are difficult to
quantify. Further, Executive Order 12866 requires that ``agencies
should select those [regulatory] approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity), unless a
statute requires another regulatory approach.'' Similarly, DOT Order
2100.6A (``Rulemaking and Guidance Procedures'') requires that
regulations issued by PHMSA and other DOT Operating Administrations
should consider an assessment of the potential benefits, costs, and
other important impacts of the proposed action and should quantify (to
the extent practicable) the benefits, costs, and any significant
distributional impacts, including any environmental impacts. The
Federal pipeline safety laws at 49 U.S.C. 60102(b)(5) further authorize
only those safety requirements whose benefits (including safety and
environmental benefits) have been determined to justify their costs.
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\45\ 58 FR 51735 (Oct. 4, 1993).
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Executive Order 12866 and DOT Order 2100.6A require that PHMSA
submit ``significant regulatory actions'' to the Office of Management
and Budget (OMB) for review. This IFR has been determined to be
significant under section 3(f) of Executive Order 12866 and was
reviewed by OMB. It is also considered significant under DOT Order
2100.6A. The Office of Information and Regulatory Affairs (OIRA) has
not, however, designated this rule as a ``major rule'' as defined by
the Congressional Review Act (5 U.S.C. 801 et seq.).
PHMSA estimates that the IFR will result in unquantified public
safety and environmental benefits associated with preventing and
mitigating hazardous liquid pipeline accidents within or that could
affect coastal beaches, coastal waters, or the Great Lakes. PHMSA
estimates annualized costs of between $3.91 million per year (using a 3
percent discount rate) and $3.98 million per year (using a 7 percent
discount rate) due to costs associating with establishing or updating
IM programs and performing integrity assessments. The costs and
benefits of the IFR are described in further detail in the RIA, which
is available in the docket.
Executive Order 13132
PHMSA analyzed this IFR in accordance with Executive Order 13132
(``Federalism'').\46\ Executive Order 13132 requires agencies to assure
meaningful and timely input by State and local officials in the
development of regulatory policies that may have ``substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
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\46\ 64 FR 43255 (Aug. 10, 1999).
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This IFR does not have a substantial direct effect on State and
local governments, the relationship between the national government and
the States, or the distribution of power and responsibilities among the
various levels of government. This rulemaking action does not impose
substantial direct compliance costs on State and local governments.
While the IFR may operate to preempt some State requirements, it
does not impose any regulation that has substantial direct effects on
the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. The pipeline safety laws, specifically 49
U.S.C. 60104(c), prohibit State safety regulation of interstate
pipeline facilities. Although the pipeline safety laws allow States to
augment pipeline safety requirements
[[Page 73184]]
for intrastate pipeline facilities, States may not issue safety
requirements less stringent than those required by Federal law. A State
may also regulate an intrastate pipeline facility PHMSA does not
regulate.
In this instance, the preemptive effect of the IFR is limited to
the minimum level necessary to achieve the objectives of the Federal
pipeline safety law under which the IFR is promulgated. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
Environmental Justice
DOT Order 5610.2C and Executive Orders 12898 (``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations''),\47\ 13985 (``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government''),\48\ 13990
(``Protecting Public Health and the Environment and Restoring Science
To Tackle the Climate Crisis''),\49\ and 14008 (``Tackling the Climate
Crisis at Home and Abroad'') \50\ require DOT Operating Administrations
to achieve environmental justice as part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, of their programs, policies, and
activities on minority populations, low-income populations, and other
disadvantaged communities.
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\47\ 59 FR 7629 (Feb. 16, 1994).
\48\ 86 FR 7009 (Jan. 20, 2021).
\49\ 86 FR 7037 (Jan. 20, 2021).
\50\ 86 FR 7619 (Feb. 1, 2021).
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PHMSA has evaluated this IFR under DOT Order 5610.2C and the
Executive Orders listed above and has determined it will not cause
disproportionately high nor adverse human health and environmental
effects on minority populations, low-income populations, or other
underserved and disadvantaged communities. The IFR is facially neutral
and national in scope; it is neither directed toward a particular
population, region, or community, nor is it expected to adversely
impact any particular population, region, or community. Indeed, because
PHMSA expects the rulemaking will reduce the safety and environmental
risks associated with hazardous liquid pipelines generally, PHMSA
understands the regulatory amendments introduced by this IFR will, in
fact, reduce any disproportionate human health and environmental risks
for minority populations, low-income populations, or other underserved
and other disadvantaged communities in the vicinity of pipelines within
the scope of the IFR's amendments.
Executive Order 13175
PHMSA analyzed this IFR in accordance with the principles and
criteria in Executive Order 13175 (``Consultation and Coordination with
Indian Tribal Governments'') \51\ and DOT Order 5301.1 (``Department of
Transportation Programs, Polices, and Procedures Affecting American
Indians, Alaska Natives, and Tribes''). Executive Order 13175 requires
agencies to assure meaningful and timely input from tribal government
representatives in the development of rules that significantly or
uniquely affect tribal communities by imposing ``substantial direct
compliance costs'' or ``substantial direct effects'' on such
communities or the relationship and distribution of power between the
Federal government and tribes.
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\51\ 65 FR 67249 (Nov. 9, 2000).
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PHMSA assessed the impact of the IFR and determined that it will
not significantly or uniquely affect tribal communities or Indian
tribal governments. The rulemaking's regulatory amendments are facially
neutral and will have broad, national scope; PHMSA, therefore, does not
expect this rulemaking to significantly or uniquely affect tribal
communities, much less impose substantial compliance costs on Native
American Tribal governments or mandate Tribal action. And insofar as
PHMSA expects the rulemaking will improve safety and reduce
environmental risks associated with hazardous liquid pipelines, PHMSA
has concluded it will not entail disproportionately high adverse risks
for Tribal communities. The funding and consultation requirements of
Executive Order 13175 do not apply.
Regulatory Flexibility Act, Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to conduct a Regulatory Flexibility Analysis (RFA) for
any rule subject to notice-and-comment rulemaking under the APA unless
the agency head certifies that the rule will not have a significant
economic impact on a substantial number of small entities. This final
rule was developed in accordance with Executive Order 13272 (``Proper
Consideration of Small Entities in Agency Rulemaking'') \52\ to promote
compliance with the RFA and to ensure that the potential impacts of the
rulemaking on small entities has been properly considered.
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\52\ 67 FR 53461 (Aug. 16, 2002).
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As discussed above, PHMSA has determined that there is ``good
cause'' to forego prior notice and comment and amend the pipeline
safety regulations through this IFR. The Regulatory Flexibility Act,
therefore, does not require PHMSA to conduct an RFA. Nonetheless, PHMSA
conducted a screening analysis of the impact of the IFR on small
entities, which is included in a final RFA within the rulemaking
docket. As explained at greater length in that RFA, PHMSA has analyzed
NPMS data and determined that only a small share of hazardous liquid
pipeline mileage nationwide will be affected by the IFR--and the
operators of most of that mileage either (1) already have IM programs,
or (2) are not small entities. Further, the compliance costs incurred
by even the handful of small entities that would be affected will not
be ``significant'' under the Regulatory Flexibility Act. For these
reasons, PHMSA certifies that the IFR will not have a significant
economic impact on a substantial number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
establishes policies and procedures for controlling paperwork burdens
imposed by Federal agencies on the public. Pursuant to 44 U.S.C.
3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must provide interested
members of the public and affected agencies with an opportunity to
comment on information collection and recordkeeping requests. PHMSA
expects this IFR to impact the information collections described below.
PHMSA will submit an information collection revision request to OMB
for approval based on the requirements in this IFR. The following
information is provided for each affected information collection: (1)
Title of the information collection; (2) OMB control number; (3)
current expiration date; (4) type of request; (5) abstract of the
information collection activity; (6) description of affected public;
(7) estimate of total annual reporting and recordkeeping burden; and
(8) frequency of collection. The information collection burden for the
following information collection is estimated to be revised as follows:
1. Title: Hazardous Liquid Pipeline Assessment Requirements.
OMB Control Number: 2137-0605.
Current Expiration Date: 4/30/23.
Abstract: This information collection covers documentation and
notifications associated with hazardous liquid pipeline IM
requirements. These requirements include documentation of
[[Page 73185]]
continual assessment and evaluation and preventative and mitigative
measures. PHMSA estimates that the new USA definitions in the IFR will
require 6 operators to create new IM programs, resulting in 46,640
hours of additional burden to prepare an IM program and integrate
safety information in the first year and 1,860 hours of additional
burden each subsequent year. This results in an average annual burden
increase of 16,787 hours per year over 3 years. PHMSA estimates that
the remaining 105 affected operators are already subject to IM
requirements, and therefore already have an IM program and perform
annual updates.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 10,509.
Total Annual Burden Hours: 342,394 hours.
Frequency of Collection: Regular.
2. Title: Qualification of Pipeline Safety Training.
OMB Control Number: 2137-0600.
Current Expiration Date: 11/30/2024.
Abstract: This information collection covers requirements to make
and maintain training and qualification records of pipeline operating
personnel. For hazardous liquid pipeline operators, these requirements
are described in subpart G of part 195. These records include
identification of individuals qualified to perform covered tasks, the
covered tasks they are qualified to perform, and the method and date
they were qualified. These records must be maintained while the
individual is performing qualified tasks, or 5 years after the
individual is no longer performing covered tasks. PHMSA estimates that
the new USA definitions in the IFR will require operators of rural
gathering lines regulated under Sec. 195.11 to keep records of
qualification for 30 additional individuals. This results in an average
annual burden increase of 5 responses and 1 hour per year over 3 years.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 29,172.
Total Annual Burden Hours: 2,293 hours.
Frequency of Collection: Regular.
3. Title: Transportation of Hazardous Liquids by Pipeline:
Recordkeeping and Accident Reporting.
OMB Control Number: 2137-0047.
Current Expiration Date: 3/31/2024.
Abstract: This information collection covers hazardous liquid
pipeline accident report requirements in Sec. 195.50 and general
recordkeeping burden associated with complying with Federal hazardous
liquid pipeline safety regulations in part 195. PHMSA estimates that
the new USA definitions in the IFR will require 2 operators of rural
gathering pipelines that become regulated under part 195.11 to
establish recordkeeping programs to comply with part 195 requirements
applicable to regulated rural gathering pipelines. This results in an
average annual burden increase of 2 responses and 272 hours per year
over 3 years. PHMSA estimates that 4 additional operators of affected
rural gathering liens already have part 195 recordkeeping programs
associated with regulated assets that they operate. The reporting
burden associated with accident reports is unchanged.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 743.
Total Annual Burden Hours: 45,919 hours.
Frequency of Collection: Regular and on occasion.
4. Title: Public Awareness Program.
OMB Control Number: 2137-0622.
Current Expiration Date: 11/30/2024.
Abstract: This information collection covers records and reports
generated in order to demonstrate compliance with public awareness
program requirements. Hazardous liquid pipeline operators must comply
with the public awareness program requirements in Sec. 195.440.
Program documentation and program evaluation results must be retained
and be made available to Federal and State pipeline safety regulatory
agencies. PHMSA estimates that the new USA definitions in the IFR will
require 2 operators of rural gathering pipelines that become regulated
under part 195.11 to establish recordkeeping programs to comply with
public awareness program requirements. PHMSA estimates an average
annual burden increase of 4 responses and 92 hours per year over 3
years associated with annual program development and program evaluation
and update requirements. PHMSA estimates that 4 additional operators of
affected rural gathering lines already have public awareness
recordkeeping programs associated with regulated assets that they
operate.
Affected Public: Hazardous Liquid Pipeline Operators.
Total Reporting and Recordkeeping Burden:
Total Annual Responses: 45,004.
Total Annual Burden Hours: 517,592 hours.
Frequency of Collection: Regular.
Those desiring to comment on these information collections should
send comments directly to the Office of Management and Budget, Office
of Information and Regulatory Affairs. Comments should be submitted on
or prior to February 25, 2022 via email at the following address:
[email protected].
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of Federal regulatory actions
on State, local, and Tribal governments, and the private sector. For
any NPRM or final rule that includes a Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate of $100 million or more (in 1996 dollars) in any given year,
the agency must prepare, amongst other things, a written statement that
qualitatively and quantitatively assesses the costs and benefits of the
Federal mandate. As explained further in the RIA, PHMSA has determined
that the IFR does not impose enforceable duties on State, local, or
Tribal governments or on the private sector of $100 million or more (in
1996 dollars) in any one year. A copy of the RIA is available for
review in the docket of this rulemaking.
Privacy Act Statement
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
National Environmental Policy Act
The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et.
seq.) requires Federal agencies to prepare a detailed statement on
major Federal actions significantly affecting the quality of the human
environment. The Council on Environmental Quality implementing
regulations (40 CFR parts 1500-1508) require Federal agencies to
conduct an environmental review considering (1) the need for the
action, (2) alternatives to the action, (3) probable environmental
impacts of the action and alternatives, and (4) the agencies and
persons consulted during the consideration process. DOT Order 5610.1C
(``Procedures for Considering Environmental Impacts'') establishes
departmental procedures for evaluation
[[Page 73186]]
of environmental impacts under NEPA and its implementing regulations.
PHMSA analyzed this IFR in accordance with NEPA, NEPA implementing
regulations, and DOT Order 5610.1C. PHMSA has prepared an environmental
assessment (EA) and determined this action will not significantly
affect the quality of the human environment. To the extent that the IFR
has impacts on the environment, these are primarily beneficial
ecological impacts from reducing the likelihood and consequences of
hazardous liquid spills in coastal areas and the Great Lakes. A copy of
the EA for this action is available in the docket. PHMSA invites
comment on the environmental impacts of this IFR.
Executive Order 13211
Executive Order 13211 (``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'') \53\
requires Federal agencies to prepare a Statement of Energy Effects for
any ``significant energy action.'' That Executive Order defines a
``significant energy action'' as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation (including a
notice of inquiry, ANPRM, and NPRM) that (1)(i) is a significant
regulatory action under Executive Order 12866 or any successor order
and (ii) is likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (2) is designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action.
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\53\ 66 FR 28355 (May 22, 2001).
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This IFR is a significant action under Executive Order 12866;
however, it is expected to have an annual effect on the economy of less
than $100 million. Further, this IFR is not likely to have a
significant adverse effect on supply, distribution, or energy use, as
further discussed in the RIA. Further, OIRA has not designated this IFR
as a significant energy action.
Executive Order 13609 and International Trade Analysis
Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \54\ requires agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
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\54\ 77 FR 26413 (May 4, 2012).
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Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
to protect the safety of the American public. PHMSA has assessed the
effects of the IFR and determined that it will not cause unnecessary
obstacles to foreign trade.
List of Subjects in 49 CFR Part 195
Pipeline safety, Pipelines, Oil pollution.
In consideration of the foregoing, PHMSA is amending 49 CFR part
195 as follows:
PART 195--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE
0
1. The authority citation for part 195 continues to read as follows:
Authority: 30 U.S.C. 185(w)(3), 49 U.S.C. 5121, 60101 et seq.,
and 49 CFR 1.97.
0
2. Amend Sec. 195.6 as follows:
0
a. In paragraph (b)(4), remove the word ``or'' at the end;
0
b. In paragraph (b)(5), remove the period at the end and add in its
place ``; or'';
0
c. Add paragraphs (b)(6) and (7);
0
d. Revise paragraph (c) introductory text; and
0
e. In paragraph (c) add definitions for the terms ``certain coastal
waters'' and ``coastal beach'' in alphabetical order.
The additions and revision read as follows:
Sec. 195.6 Unusually Sensitive Areas.
* * * * *
(b) * * *
(6) A coastal beach; or
(7) Certain coastal waters.
(c) Definitions used in this part--
* * * * *
Certain coastal waters means the territorial sea of the United
States; the Great Lakes and their connecting waters; and the marine and
estuarine waters of the United States up to the head of tidal
influence.
* * * * *
Coastal beach means any land between the high- and low-water marks
of certain coastal waters.
* * * * *
Issued in Washington, DC, on December 16, 2021, under authority
delegated in 49 CFR 1.97.
Tristan H. Brown,
Deputy Administrator.
[FR Doc. 2021-27751 Filed 12-23-21; 8:45 am]
BILLING CODE 4910-60-P