Pipeline Safety: Requirement of Valve Installation and Minimum Rupture Detection Standards: Response to Petition for Reconsideration; Technical Corrections

Pipeline Safety: Requirement of Valve Installation and Minimum Rupture Detection Standards: Response to Petition for Reconsideration; Additional Technical Corrections

Supplementary Information

On April 8, 2022, PHMSA published a final rule titled "Pipeline Safety: Requirement of Valve Installation and Minimum Rupture Detection Standards"  ⁽¹⁾ (Valve Rule) amending the Federal pipeline safety regulations (49 CFR parts 190 through 199) to, among other provisions, require the installation of rupture-mitigation valves (RMV) or alternative equivalent technologies and establish minimum performance standards for the operation of those valves to mitigate the public safety and environmental consequences of ruptures on gas and hazardous liquid (including carbon dioxide) pipelines. On May 16, 2023, the D.C. Circuit vacated the Valve Rule's regulatory amendments as they applied to gathering pipelines (gathering lines). ⁽²⁾

Subsequently, on August 1, 2023, PHMSA issued "Pipeline Safety: Requirement of Valve Installation and Minimum Rupture Detection Standards: Technical Corrections," 88 FR 50056 (Aug. 1, 2023) (Correction Rule), which updated provisions of the pipeline safety regulations, as amended by the Valve Rule, to codify the D.C. Circuit's decision. On August 30, 2023, the American Petroleum Institute (API) and GPA Midstream Association (GPA) jointly filed a Petition for Reconsideration (Petition) of the Correction Rule. The Petition requested two regulatory amendments pertaining to the D.C. Circuit's May 2023 decision.

First, API and GPA noted that, although § 192.9(c) provides an exception for Type A gathering lines from the requirements at § 192.617(b) through (d), corresponding references to Type A gathering lines remained within § 192.617(c) and (d). API and GPA requested PHMSA remove those references within § 192.617(c) and (d) to better conform to the D.C. Circuit decision.

Second, API and GPA also noted that, although PHMSA amended the definition of "notification of potential rupture" at §§ 192.3 and 195.2 to exclude gathering lines, that exclusion was not made explicit within a companion provision in operating requirements at § 192.635(a). API and GPA requested PHMSA add a disclaimer to § 192.635 to align with the changes made to the definition for "notification of potential rupture" to conform with the D.C. Circuit order specifying that § 192.635(a) is not applicable to gas gathering lines. PHMSA recently granted the Petition by response letter to GPA and API. ⁽³⁾

On September 22, 2023, GPA and API filed a "Supplement Letter" to the Petition requesting revision of § 195.418(b)(2)(ii) (regarding the spacing interval of shut-off valves on transmission pipeline segments carrying highly volatile liquids) and the groups filed an additional "Supplement Letter" on May 30, 2024, requesting revision of § 195.260(c) (regarding spacing from endpoints of transmission pipeline segments in high consequence areas). PHMSA denied each of these supplements as an untimely petition for reconsideration, and, according to § 190.335(a), will assess them as petitions for rulemaking under §§ 190.331 and 190.333.

I. Conforming Corrections Implementing Judicial Decision

In response to the August 30, 2023, Petition, PHMSA makes the following further amendments to the pipeline safety regulations in conformity with the D.C. Circuit decision. PHMSA revises § 192.617(b) through (d) to remove references to Type A gas gathering lines from those requirements and clarify that those provisions are inapplicable to gas gathering lines. Additionally, PHMSA revises § 192.635 to add a disclaimer explicitly stating that section does not apply to gas gathering lines within a new paragraph (c) to align with the previously revised definition for "notification of potential rupture" at § 192.3. Making these amendments conforms to the D.C. Circuit decision.

II. Regulatory Analyses and Notices

A. Statutory/Legal Authority and Good Cause for Immediate Adoption Without Prior Notice and Comment

This document is published under the authority of the Secretary of Transportation delegated to the PHMSA Administrator pursuant to 49 CFR 1.97. Among the statutory authorities delegated to PHMSA are the authorities vested in the Secretary under the Federal Pipeline Safety Statutes (49 U.S.C. 60101 et seq. ). Section 60102(a) authorizes issuance of regulations governing design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. See also 49 U.S.C. 60102(n) (requiring the Secretary to issue regulations requiring the installation of RMVs or equivalent technology on new and entirely replaced transmission lines). Other authorities delegated to PHMSA include 49 U.S.C. 5103 (regulatory authority to prescribe regulations for transportation of hazardous materials) and 30 U.S.C. 185(w)(3) (authority to prescribe reporting requirements for pipelines traversing Federal lands). ⁽⁴⁾

PHMSA finds it has good cause to make the judicially conforming corrections without notice and comment pursuant to section 553(b) of the Administrative Procedure Act (APA, 5 U.S.C. 551 et seq. ). Section 553(b)(B) of the APA provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The APA good cause exception applies "when rulemaking without notice and comment is a reasonable and perhaps inevitable response to a court order" such that the court order would make additional comment "utterly unnecessary." EME Homer City Generation, LP v. EPA, 795 F.3d 118, 134-35 (D.C. Cir. 2015) (internal quotations omitted). These corrections rectify unintended omissions from PHMSA's August 1, 2023, Correction Rule to ensure the regulations conform with judicial review of the final Valve Rule. Good cause exists to further ensure part 192 conforms with the D.C. Circuit's order, ⁽⁵⁾ and PHMSA finds that additional comment on these corrections is unnecessary as no comment here can "change[ ] that fact" of the court's order to vacate the Valve Rule amendments as to gathering lines. See EME Homer, 795 F.3d at 135.

Similarly, good cause authorizes the immediate effective date of these additional corrections. Section 553(d)(3) of the APA provides that a rule should take effect not less than 30 days after publication in the Federal Register , except for when good cause is found by the agency and published within the rule allowing for earlier effect. 5 U.S.C. 553(d)(3). "[T]he purpose of the thirty-day waiting period is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect." Omnipoint Corp. v. F.C.C., 78 F.3d 620, 630 (D.C. Cir. 1996). PHMSA finds that, for the same reasons stated above, there is good cause under section 553(d)(3) of the APA to make these revisions effective immediately upon publication in the Federal Register .

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

This document has been evaluated in accordance with Executive Order 12866 ("Regulatory Planning and Review"), ⁽⁶⁾ Executive Order 14094 ("Modernizing Regulatory Review"), ⁽⁷⁾ and DOT Order 2100.6A ("Rulemaking and Guidance Procedures") and is considered not significant; therefore, this document has not been reviewed by the Office of Management and Budget (OMB). PHMSA finds that the conforming corrections herein impose no incremental compliance costs beyond those assessed earlier in the Valve Rule, nor do they adversely affect safety, as the corrections merely codify the results of judicial review limiting the scope of application of the Valve Rule, and otherwise are consistent with the Valve Rule.

C. Regulatory Flexibility Act

The analytical requirements of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Flexibility Fairness Act of 1996 (RFA, 5 U.S.C. 601 et seq. ), do not apply when the agency finds good cause under the APA to adopt a rule without prior notice and comment. ⁽⁸⁾ Because PHMSA has "good cause" under the APA to forego comment on the corrections herein, no RFA analysis is required.

D. Paperwork Reduction Act

The corrections in this document impose no new or revised information collection requirements. As explained above, the changes being made in this document are non-substantive, and they will require no change to the current incident and annual reporting forms and their respective instructions as discussed in the preamble of the Valve Rule.

E. Unfunded Mandates Reform Act of 1995

PHMSA analyzed the corrections in this document pursuant to the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1501 et seq. ) and determined that the corrections do not impose enforceable duties of $100 million or more, adjusted for inflation, in any one year, on state, local, or tribal governments, or on the private sector. Because the corrections impose no new incremental compliance costs beyond those already assessed in the Valve Rule, PHMSA's earlier UMRA analysis prepared for the Valve Rule need not be changed. ⁽⁹⁾

F. National Environmental Policy Act

The National Environmental Policy Act of 1969 (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. PHMSA analyzed the Valve Rule in accordance with NEPA, implementing Council on Environmental Quality regulations (40 CFR parts 1500 through 1508), and DOT implementing policies (DOT Order 5610.1C, "Procedures for Considering Environmental Impacts") and determined the Valve Rule would not significantly affect the quality of the human environment. ⁽¹⁰⁾ PHMSA has determined that the corrections in this document have no effect on its earlier NEPA analysis, as the corrections simply reflect the Valve Rule as modified by judicial review.

G. Executive Order 13132 (Federalism)

PHMSA has analyzed this document in accordance with the principles and criteria contained in Executive Order 13132 ("Federalism"). ⁽¹¹⁾ PHMSA has previously determined that the Valve Rule did not impose any substantial direct effect on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government, see 87 FR at 20978. Because the judicially conforming corrections herein are consistent with the Valve Rule as modified by judicial review, the consultation and funding requirements of Executive Order 13132 do not apply. ⁽¹²⁾

H. Executive Order 13211

PHMSA analyzed the Valve Rule and determined that the requirements of Executive Order 13211 ("Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use")  ⁽¹³⁾ did not apply. These judicially conforming corrections to the Valve Rule are not a "significant energy action" under Executive Order 13211, as they are not a significant regulatory action, and they are not likely to have a significant adverse effect on supply, distribution, or energy use. Further, OMB has not designated the corrections herein as a significant energy action.

I. Executive Order 13175

This document was analyzed in accordance with the principles and criteria contained in Executive Order 13175 ("Consultation and Coordination with Indian Tribal Governments")  ⁽¹⁴⁾ and DOT Order 5301.1 ("Department of Transportation Policies, Programs, and Procedures Affecting American Indians, Alaska Natives, and Tribes"). Because none of the corrections in this final rule have tribal implications or impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

J. Executive Order 13609 and International Trade Analysis

Under Executive Order 13609 ("Promoting International Regulatory Cooperation"), ⁽¹⁵⁾ agencies must 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. The judicially conforming corrections to the Valve Rule in this document do not impact international trade.

K. Regulation Identifier Number (RIN)

A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

L. Severability

The purpose of these corrections is to conform with the outcome of judicial review of the Valve Rule. The provisions amended herein focus on disparate topics. Therefore, PHMSA finds that each correction in this rule is severable and able to function independently from the others. Further, these provisions are severable from the Correction Rule and from the Valve Rule. In the event a court were to invalidate one or more of the unique amendments in this rule, the remaining provisions should stand, thus allowing their continued effect.

In consideration of the foregoing, PHMSA makes the following correcting amendments to 49 CFR part 192:

Part 192 Transportation of Natural Gas and Other Gas by Pipeline Minimum Federal Safety Standards

⁽¹⁾  87 FR 20940 (Apr. 8, 2022).

⁽²⁾ See GPA Midstream Ass'n v. U.S. Dep't of Transp., 67 F.4th 1188 (D.C. Cir. 2023). The court left in place those regulations as applied to gas and hazardous liquid transmission pipelines.

⁽³⁾  PHMSA's response to API and GPA's Petition and Supplement Letter can be found in rulemaking docket no. PHMSA-2013-0255 on www.regulations.gov. PHMSA incorporates by reference its response in its entirety within this Notice.

⁽⁴⁾ See also 87 FR at 20978 (Valve Rule statutory authorities).

⁽⁵⁾ GPA Midstream Ass'n, 67 F.4th at 1202.

⁽⁶⁾  58 FR 51735 (Oct. 4, 1993).

⁽⁷⁾  88 FR 21879 (Apr. 11, 2023).

⁽⁸⁾ See 5 U.S.C. 603-604. See also Small Business Administration, "A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act" 55 (2017).

⁽⁹⁾  Final Regulatory Impact Analysis, Doc. No. PHMSA-2013-0255-0046.

⁽¹⁰⁾  Final Environmental Assessment, Doc. No. PHMSA-2013-0255-0045.

⁽¹¹⁾  64 FR 43255 (Aug. 10, 1999).

⁽¹²⁾  Moreover, PHMSA determined that the Valve Rule did not impose substantial direct compliance costs on state and local governments.

⁽¹³⁾  66 FR 28355 (May 22, 2001).

⁽¹⁴⁾  65 FR 67249 (Nov. 6, 2000).

⁽¹⁵⁾  77 FR 26413 (May 4, 2012).