[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73173-73186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27751]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 195

[Docket No. PHMSA-2017-0152; Amdt. No. 195-104]
RIN 2137-AF31


Pipeline Safety: Unusually Sensitive Areas for the Great Lakes, 
Coastal Beaches, and Certain Coastal Waters

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

ACTION: Interim final rule.

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SUMMARY: PHMSA is amending the pipeline safety regulations to 
explicitly state that certain coastal waters, the Great Lakes, and 
coastal beaches are classified as unusually sensitive areas for the 
purpose of compliance with the hazardous liquid integrity management 
regulations. This amendment implements mandates contained in the 
Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) 
Act of 2016, as amended by the PIPES Act of 2020. A hazardous liquid 
pipeline that could affect these newly designated areas must be 
included in an operator's integrity management program.

DATES: The effective date of the interim final rule is February 25, 
2022. Submit comments by February 25, 2022.

ADDRESSES: You may submit comments, identified by Docket No. PHMSA-
2017-0152, by any of the following methods:
     E-Gov Web: http://www.regulations.gov. This site allows 
the public to enter comments on any Federal Register notice issued by 
any agency. Follow the online instructions for submitting comments.
     Mail: Docket Management System: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: DOT Docket Management System: West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9:00 
a.m. and 5:00 p.m. ET, Monday through Friday, except Federal holidays.

[[Page 73174]]

     Fax: 202-493-2251.
     Instructions: Identify the Docket No. PHMSA-2017-0152, at 
the beginning of your comments. If you submit your comments by mail, 
submit two copies. If you wish to receive confirmation that PHMSA 
received your comments, include a self-addressed stamped postcard. 
Internet users may submit comments at http://www.regulations.gov.
     Note: All comments received are posted without edits to 
http://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act heading below.
     Privacy Act: In accordance with 5 U.S.C. 553(c), DOT 
solicits comments from the public to better inform its rulemaking 
process. DOT posts these comments, without edit, including any personal 
information the commenter provides, to www.regulations.gov, as 
described in the system of records notice (DOT/ALL-14 FDMS), which can 
be reviewed at www.dot.gov/privacy.
     Confidential Business Information: Confidential Business 
Information (CBI) is commercial or financial information that is both 
customarily and actually treated as private by its owner. Under the 
Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public 
disclosure. If your comments in response to this notice contain 
commercial or financial information that is customarily treated as 
private, that you actually treat as private, and that is relevant or 
responsive to this notice, it is important that you clearly designate 
the submitted comments as CBI. Pursuant to 49 Code of Federal 
Regulations (CFR) 190.343, you may ask PHMSA to provide confidential 
treatment to information you give to the agency by taking the following 
steps: (1) Mark each page of the original document submission 
containing CBI as ``Confidential;'' (2) send PHMSA a copy of the 
original document with the CBI deleted along with the original, 
unaltered document; and (3) explain why the information you are 
submitting is CBI. Submissions containing CBI should be sent to Sayler 
Palabrica, 1200 New Jersey Avenue SE, DOT: PHMSA--PHP-30, Washington, 
DC 20590-0001. Any commentary PHMSA receives that is not specifically 
designated as CBI will be placed in the public docket.
     Docket: For access to the docket to read background 
documents or comments received, go to http://www.regulations.gov. 
Follow the online instructions for accessing the dockets. 
Alternatively, you may review the documents in person at the street 
address listed above.

FOR FURTHER INFORMATION CONTACT: Sayler Palabrica by phone at 202-744-
0825 or via email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Hazardous Liquid Integrity Management
III. National Pipeline Mapping System
IV. Consequences of Hazardous Liquid Pipeline Spills in Coastal 
Areas and the Great Lakes
V. Legislative and Administrative History
VI. Summary of Amendments
VII. Effective Date and Comments
VIII. Good Cause Exception
IX. Regulatory Analyses and Notices

I. Introduction

    PHMSA issues this interim final rule (IFR) to satisfy mandates 
within the PIPES Act of 2016 (Pub. L. 114-183) and the PIPES Act of 
2020 (Pub. L. 116-260) to expand application of PHMSA's integrity 
management (IM) requirements to approximately 2,905 additional miles of 
hazardous liquid and carbon dioxide pipelines \1\ located within or 
that could affect the Great Lakes, coastal beaches, or ``certain 
coastal waters.'' The IFR will provide enhanced protection from 
hazardous liquid pipeline accidents similar to the 2010 Marshall, MI 
and the 2015 Refugio Beach, CA oil spills, and ensure that events like 
the anchor strike that damaged Enbridge's Line 5 in the Straits of 
Mackinac are promptly identified and remediated before they result in 
environmental damage.
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    \1\ Hereinafter, references to ``hazardous liquid'' pipelines 
will refer to both hazardous liquid and carbon dioxide pipelines for 
simplicity, as they are both governed by 49 CFR part 195.
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    Hazardous liquid pipelines that could affect a high consequence 
area (HCA) are subject to additional safety requirements. Specifically, 
such pipelines must be included in an IM program. An HCA is defined in 
49 CFR 195.450 as a commercially navigable waterway, a high population 
area, an other populated area, or an unusually sensitive area (USA) as 
defined in Sec.  195.6. Section 195.6 identifies two types of USAs, 
``USA drinking water resources'' and ``USA ecological resources.'' 
Every USA is, therefore, also an HCA. Under Sec.  195.452, an operator 
of a hazardous liquid pipeline that is located in a USA, or in an area 
where a release could affect a USA, is required to comply with IM 
requirements. Section 19 of the PIPES Act of 2016 amended 49 U.S.C. 
60109(b)(2) and directed PHMSA to revise the definition of a USA in 
Sec.  195.6(b) to explicitly state that the Great Lakes, coastal 
beaches, and marine coastal waters are USA ecological resources. 
Congress further clarified this mandate in Section 120 of the PIPES Act 
of 2020 (division R of the Consolidated Appropriations Act of 2021, 
Pub. L. 116-260). With this clarification, the PIPES Act of 2020 
introduced and defined the term ``certain coastal waters'' to replace 
the undefined term ``marine coastal waters.'' Congress defined 
``certain coastal waters'' as the ``territorial sea of the United 
States; the Great Lakes and their connecting waters; and the marine and 
estuarine waters of the United States up to the head of tidal 
influence.'' Furthermore, Congress defined the term ``coastal beach'' 
as ``any land between the high- and low-water marks of certain coastal 
waters.'' This IFR incorporates these terms and the statutory 
definitions into Sec.  195.6, as directed by Congress.
    PHMSA maintains a map of HCAs, excluding proprietary or security 
sensitive information, in the National Pipeline Mapping System (NPMS) 
pursuant to 49 U.S.C. 60132(d). PHMSA intends to map ``certain coastal 
waters'' and ``coastal beaches'' as a single data layer within the 
NPMS. PHMSA will generate this map based on a combination of geographic 
information system (GIS) data from the National Oceanic and Atmospheric 
Administration (NOAA) Clean Water Act \2\ dataset, U.S. Environmental 
Protection Agency (EPA) Estuary Data Mapper,\3\ and the NOAA Sea Level 
Rise Viewer.\4\ Each of these datasets are generated by expert 
scientific agencies of the Federal government and are available on the 
internet for public viewing. These datasets are further described in 
section VI of this IFR. PHMSA seeks comments on the use of these 
datasets to represent the location of the statutory definitions of 
``certain coastal waters'' and ``coastal beaches'' in the NPMS.
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    \2\ NOAA Office for Coastal Management, ``Clean Water Act 
Dataset'' (Nov. 9, 2016), https://catalog.data.gov/dataset/clean-water-act (last accessed October 13, 2021).
    \3\ EPA, ``High End Scientific Computing--Estuary Data Mapper 
Dataset'' (Dec. 7, 2020), https://www.epa.gov/hesc/estuary-data-mapper-edm (last accessed June 21, 2021).
    \4\ NOAA Office for Coastal Management, ``Sea Level Rise Viewer 
Dataset'' (July 2020), https://catalog.data.gov/dataset/noaa-digital-coast-sea-level-rise-and-coastal-flooding-impacts-viewer 
(last accessed October 13, 2021).
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    While the primary effect of the IFR is expanding the hazardous 
liquid pipeline mileage subject to IM program requirements, defining 
new USAs also affects the requirements for certain pipelines in rural 
areas. Proximity to a USA also determines if an onshore rural gathering 
line is a regulated rural gathering line subject to safety requirements 
described in Sec.  195.11(b). Additionally, a pipeline categorized as a

[[Page 73175]]

Category 3 rural low-stress pipeline could become a Category 1 or 
Category 2 pipeline if it is located within \1/2\ mile of a USA.
    PHMSA is not changing the definition of ``offshore'' in Sec. Sec.  
192.3 or 195.2 as a part of this IFR. Those sections define 
``offshore'' to mean beyond the line of ordinary low water along that 
portion of the coast of the United States that is in direct contact 
with the open seas and beyond the line marking the seaward limit of 
inland waters. The new USAs defined in Sec.  195.6 do not affect the 
definition of ``offshore'' in Sec. Sec.  192.3 or 195.2. Even if data 
used to map the new USAs refer to ``offshore'' areas as defined or 
designated by a separate statute, such as the Submerged Lands Act (43 
U.S.C. 1301 et seq.), the regulatory definition of ``offshore'' in 
Sec. Sec.  192.3 and 195.2 is distinct from these other statutes and 
will remain unchanged. In other words, the definitions of ``coastal 
beach'' and ``certain coastal waters'' exist independently of the 
definition of ``offshore'' in Sec. Sec.  192.3 or 195.2. A pipeline 
could be located within certain coastal waters and be either 
``onshore'' or ``offshore'' under Sec. Sec.  192.3 and 195.2. 
Accordingly, altering the definition of ``offshore'' is beyond the 
scope of this IFR.

II. Hazardous Liquid Integrity Management

    The objective of the hazardous liquid IM requirements at Sec.  
195.452 is to reduce the risks of pipeline spills in areas where a 
release could have significant consequences. In a series of final rules 
published between 2000 and 2002, PHMSA's predecessor agency, the 
Research and Special Programs Administration, promulgated regulations 
that defined HCAs and required operators to develop and implement IM 
programs for each hazardous liquid pipeline that could affect an HCA in 
the event of a release. HCAs are defined in Sec.  195.450 and represent 
areas where a release could have significant adverse consequences to 
human health and safety, the environment, and commercial navigation. 
The IM requirements that operators must implement to protect HCAs are 
specified in Sec.  195.452.
    IM requirements for hazardous liquid pipelines were implemented in 
four final rules. The first final rule was ``Pipeline Integrity 
Management in High Consequence Areas (Hazardous Liquid Operators with 
500 or More Miles of Pipeline),'' \5\ followed by ``Areas Unusually 
Sensitive to Environmental Damage,'' \6\ and ``Pipeline Integrity 
Management in High Consequence Areas (Hazardous Liquid Operators with 
Less Than 500 Miles of Pipelines).'' \7\ PHMSA made updates to these 
requirements in a 2019 final rule titled ``Safety of Hazardous Liquid 
Pipelines.'' \8\ These rules established a regulatory framework focused 
on risk identification, assessment, and mitigation. PHMSA's IM 
regulations require operators of pipelines located in areas where a 
release could affect an HCA to take additional steps to address threats 
to the integrity of those pipelines by operating and maintaining those 
pipelines in accordance with an effective IM program. These measures 
require operators to devote additional analysis, assessment, and 
remediation resources to protect HCAs from pipeline releases that could 
adversely affect human health and safety, cause environmental damage, 
and disrupt commercial navigation.
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    \5\ 65 FR 75377 (Dec. 1, 2000).
    \6\ 64 FR 9532 (Feb. 8, 2001).
    \7\ 67 FR 2136 (Jan. 16, 2002).
    \8\ 84 FR 52260 (Oct. 1, 2019).
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A. High Consequence Areas

    Section 195.450 of the existing hazardous liquid pipeline safety 
regulations defines an HCA as: (1) A commercially navigable waterway, 
which means a waterway where a substantial likelihood of commercial 
navigation exists; (2) a high population area, which means an urbanized 
area, as defined and delineated by the U.S. Census Bureau, that 
contains 50,000 or more people and has a population density of at least 
1,000 people per square mile; (3) an other populated area, which means 
a place, as defined and delineated by the U.S. Census Bureau, that 
contains a concentrated population, such as an incorporated or 
unincorporated city, town, village, or other designated residential or 
commercial area; or (4) an unusually sensitive area, which is defined 
in Sec.  195.6 to be a drinking water or ecological resource area that 
is unusually sensitive to environmental damage from a hazardous liquid 
pipeline release. Section 195.452(d)(2) requires operators to 
incorporate newly identified HCAs into their baseline assessment plans 
within one year from the date the area is identified, and complete a 
baseline assessment of any pipeline that could affect the newly 
identified HCA within 5 years from the date the area is so designated.

B. Unusually Sensitive Areas

    Section 195.6 defines a USA as a drinking water or ecological 
resource area that is unusually sensitive to environmental damage from 
a hazardous liquid pipeline release. The regulatory definition of USA 
elaborates that a drinking water resource generally refers to a source 
of drinking water (e.g., a surface water intake, a source water 
protection area for wells, or a recharge area for a karst aquifer) for 
a community water system, or a non-transient, non-community water 
system (e.g., a school or factory) with no adequate alternative supply 
of drinking water. The definition of a USA ecological resource includes 
areas containing one or more critically imperiled species or ecological 
communities; a multi-species assemblage area; a migratory waterbird 
concentration area; and an area containing an imperiled, threatened, 
endangered species, depleted marine mammal species, or an imperiled 
ecological community containing species with a limited range.

C. Integrity Management Requirements

    As described above, every USA is an HCA, and a hazardous liquid 
pipeline that could affect an HCA must be included in an operator's 
hazardous liquid IM program. Section 195.452(b) requires an operator to 
develop and follow a written IM program. Section 195.452(f) requires 
that a hazardous liquid pipeline IM program include each of the 
following elements:
     A process for identifying pipelines that could affect an 
HCA, including USAs (see Sec. Sec.  195.6, 195.450, Appendix C to part 
195, ``Guidance for Implementation of an Integrity Management 
Program'');
     A plan for scheduling and performing baseline assessments 
(Sec.  195.452(c));
     An analysis of pipeline safety risks that integrates all 
available information about pipeline integrity and potential 
consequences (Sec.  195.452(g));
     Criteria for performing remedial action in response to 
pipeline integrity issues identified during assessments or other 
analysis (Sec.  195.452(h));
     A continuous process for scheduling, performing, and 
interpreting integrity assessments and evaluations (Sec.  195.452(j));
     Identification of ``preventative and mitigative measures'' 
to protect the pipeline from identified integrity threats (Sec.  
195.452(i));
     Procedures for evaluating the effectiveness of the IM 
program (Sec.  195.452(k)); and
     A process to ensure integrity assessment results and 
information analysis is performed by qualified personnel (Sec.  
195.452(f)(8)).

[[Page 73176]]

    When an operator determines that a pipeline segment could affect an 
HCA, it must integrate information about that segment, including 
information about potential consequences, into its risk analysis and 
add the segment to the baseline assessment plan. The minimum data 
attributes operators are required to consider are listed in Sec.  
195.452(g)(1). This includes information about the pipeline itself; 
excavation damage threats; information about the potential impacts of a 
release on an HCA; and data from integrity assessments, cathodic 
protection surveys, patrols, and other maintenance and surveillance 
tasks. This analysis is used to prioritize and schedule integrity 
assessments and identify preventative and mitigative measures.
    If a pipeline segment could affect a newly identified USA as a 
result of this IFR, the operator must include that segment in their IM 
program and periodically assess the integrity of that segment. Section 
195.452(d)(2) requires an operator to add pipelines that cross or could 
affect new HCAs into their baseline assessment plan within 1 year of 
obtaining that new HCA information and complete the baseline assessment 
within 5 years of that date. Section 195.452(c)(1)(i) requires that the 
baseline assessment be done with an in-line inspection tool unless 
construction or operational factors make an in-line inspection 
impracticable. The operator must select an in-line inspection tool, or 
combination of tools, capable of detecting, at a minimum, corrosion and 
dents. If cracking is identified as a probable integrity threat, then 
the operator must select a tool or combination of tools capable of 
detecting cracks. If an in-line inspection is impracticable, an 
operator may perform a baseline assessment using a pressure test, 
external corrosion direct assessment, or other technology with advance 
notification to PHMSA.
    After the baseline assessment, a segment that could affect an HCA 
must be reassessed regularly. The assessment schedule for both the 
baseline assessment and reassessments must be established by 
considering all risk factors, including, at a minimum, each of the 
factors listed in Sec.  195.452(e). Section 195.452(j)(3) requires 
operators to continually assess the pipeline's integrity at no greater 
than 5-year intervals, not to exceed 68 months, except as provided in 
Sec.  195.452(j)(4). If the operator detects a defect during an 
assessment, the operator must remediate it pursuant to the requirements 
in Sec.  195.452(h) and the operator's procedure. That paragraph 
requires an operator to establish repair criteria that meet minimum 
standards for remediation methods and repair of various repair 
conditions.
    In addition to assessment and repair requirements, operators must 
use a risk analysis to identify preventative and mitigative measures 
necessary to avert negative impacts in HCAs. Examples of preventative 
and mitigative measures identified in Sec.  195.452(i) include adopting 
damage prevention best practices, improving cathodic protection 
monitoring, shortening inspection intervals, installing emergency flow 
restricting devices,\9\ installing leak detection equipment, or 
providing enhanced response training to operator personnel and 
emergency responders. Operators must implement preventative and 
mitigative measures based on an analysis of the likelihood of a 
pipeline release and the potential consequences of the release. The 
minimum elements of this risk analysis are described in Sec.  
195.452(i)(2). Pipelines that could affect an HCA must have a means to 
detect leaks on the pipeline system(s) pursuant to Sec.  195.452(i)(3), 
though Sec. Sec.  195.134 and 195.444 require leak detection systems on 
hazardous liquid pipeline systems outside of HCAs as well.
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    \9\ A check valve or a remote control valve as defined in Sec.  
195.450.
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III. National Pipeline Mapping System

A. NPMS Introduction

    PHMSA maintains a map of HCAs in the NPMS pursuant to 49 U.S.C. 
60132(d). The NPMS includes GIS resources that allow users to view 
pipeline maps and pipeline operations information, depending on the 
profile of the user. The NPMS contains locations and information about 
gas transmission and hazardous liquid pipelines and liquefied natural 
gas (LNG) plants under PHMSA jurisdiction. The NPMS also contains 
hazardous liquid pipeline HCA data \10\ and voluntarily submitted 
breakout tank \11\ data. NPMS data for hazardous liquid pipeline 
facilities include geospatial data, attribute data for pipeline 
segments, metadata, and operator contact information. Operators are 
required to submit NPMS data annually or review their current data in 
the NPMS to confirm it is still accurate pursuant to Sec.  195.61. 
PHMSA processes operator data submissions year-round and the online 
mapping applications and resources are updated approximately every 
other month. These data and submission requirements are described in 
further detail in Sec.  195.61 and the Operator Standards Manual, 
available on the NPMS web page.\12\
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    \10\ While HCAs for hazardous liquid pipelines are defined areas 
under Sec.  195.450, HCAs for gas pipelines are identified under 
Sec.  192.903 based on the location, diameter, and maximum allowable 
operating pressure of the pipeline and the pipeline's proximity to 
nearby structures. See also 49 U.S.C. 60109(b).
    \11\ A breakout tank is a storage tank in a hazardous liquid 
pipeline system used as part of the transportation of hazardous 
liquids by pipeline. See Sec.  195.2.
    \12\ PHMSA, ``National Pipeline Mapping System Standards for 
Pipeline, Liquefied Natural Gas and Breakout Tank Farm Operator 
Submissions'' (Oct. 2017). https://www.npms.phmsa.dot.gov/Documents/Operator_Standards.pdf. (last accessed June 21, 2021).
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    The NPMS contains information from over 1,500 operators totaling 
over 225,000 miles of hazardous liquid pipelines and over 310,000 miles 
of gas transmission pipelines. Operators also voluntarily provided 
information on the location of 3,476 breakout tanks out of 8,412 
reported in annual reports for the 2019 reporting year. PHMSA and 
others use NPMS data for a wide variety of purposes, including 
emergency response, inspection planning, risk assessment, regulatory 
support, spatial analysis, map production, public awareness, and 
education.

B. NPMS Access to Geospatial Data

    The NPMS website is structured into three pages by user-type to 
facilitate access to available information and resources. The pages 
include: (1) The Government Official Portal, intended for government 
officials at the local, State, or Federal level, including emergency 
responders and tribal governments; (2) the Operator Portal, intended 
for employees of pipeline operators who contribute data to the NPMS, 
including operators of gas transmission or hazardous liquid pipelines, 
breakout tanks, and LNG plants under PHMSA jurisdiction; \13\ and (3) 
the General Public Portal, available for members of the public. The 
General Public Portal includes information about gas transmission and 
hazardous liquid pipelines, an operator directory, and the NPMS Public 
Map Viewer for exploring or printing NPMS maps on a per-county basis. 
The General Public Portal also has maps of HCAs. This includes the 
location of high-population areas derived from U.S. Census Bureau data 
and commercially navigable waterways from the U.S. Army Corps of 
Engineers' National Waterway Network. As an initial step to implement 
Section 19 of the PIPES Act of 2016, PHMSA, in 2019, incorporated GIS 
data for the Great Lakes USA ecological resource to the NPMS based on 
the definition of the Great Lakes from 33 U.S.C. 1268 and

[[Page 73177]]

geospatial information from NOAA's U.S. State Submerged Lands 
dataset.\14\ NOAA updates this dataset as needed to ensure accuracy in 
depicting Great Lakes shorelines and last updated the dataset in 2016.
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    \13\ Operators can also use the Operator Portal to access 
information regarding NPMS data submission requirements, procedures, 
and HCA GIS data layers to support IM program planning.
    \14\ PHMSA, Press Release, ``PHMSA ID's Great Lakes as an 
Ecological Resource in NPMS'' (Oct. 21, 2019), https://www.phmsa.dot.gov/news/phmsa-ids-great-lakes-ecological-resource-npms.
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    In addition to the three user-type pages discussed above, PHMSA has 
also developed the Pipeline Information Management Mapping Application 
(PIMMA). PIMMA is a password-protected, web-based mapping application 
limited to government officials and pipeline operators. Each government 
user only has access to the maps of pipelines in their area of 
jurisdiction, and each operator user only has access to maps of the 
pipelines they operate. Government officials or operators can apply for 
PIMMA access or log in to PIMMA from the NPMS homepage. Information on 
how to use and access PIMMA is available within the Government Official 
and Operator Portals.
    Government officials and operators can request access to pipeline 
facility GIS data from the NPMS for use in their own GIS. This option 
allows government officials and operators to produce maps and conduct 
analyses. Government officials and operators may also apply for access 
to the NPMS pipeline facility GIS data in their area of jurisdiction or 
for the pipeline facilities they operate. Hazardous liquid operators 
may only access USA GIS data for the States in which they operate or 
are constructing hazardous liquid pipelines. Except for HCA and USA GIS 
data available on the General Public Portal (i.e., populated areas, 
commercially navigable waterways, and the Great Lakes), all GIS data 
from the NPMS is considered for official use only and requires an 
application process that can include an official request letter from a 
pipeline company manager. Detailed instructions for access to GIS data 
from the NPMS are available on the NPMS website at https://www.npms.phmsa.dot.gov/. PHMSA conducts reviews of publicly available 
dataset updates every two years to maintain HCA data accuracy. PHMSA 
announces updates via emails to pipeline operators and on the NPMS 
website.

IV. Consequences of Hazardous Liquid Pipeline Spills in Coastal Areas 
and the Great Lakes

    Any release of petroleum, petroleum products, or other hazardous 
liquids can adversely affect human health and safety, threaten wildlife 
and habitats, impede commercial navigation, or damage personal or 
commercial property. Spills into bodies of water present increased risk 
because the water and water currents act as conveyances to increase the 
spread of the spill. These factors greatly complicate response, 
recovery, and remediation efforts for spills affecting bodies of water 
and intertidal land along the shoreline. Major oil spills within the 
Great Lakes, shorelines, or coastal waters would have extreme, 
negative, and persistent impacts on shoreline ecology, benthic 
communities at the base of the ecosystem, fisheries, human health, and 
the economy of coastal communities. This IFR takes immediate action 
necessary to ensure that operators take appropriate steps to protect 
the Great Lakes, coastal communities, and marine waters from the 
impacts of hazardous liquid spills into these fragile environments. 
Although prediction of the precise number of avoided accidents realized 
by this rulemaking's extension of IM requirements to currently 
unregulated pipelines is challenging, the historical examples below 
underscore the magnitude of adverse environmental consequences for 
coastal beaches and coastal waters in the event of a significant 
pipeline accident.
    The most recent significant pipeline accident that affected coastal 
beaches and coastal waters was a 2015 oil spill where a pipeline 
operated by Plains Pipeline, LP (Plains) failed due to external 
corrosion.\15\ While this rupture occurred in an HCA and therefore was 
subject to PHMSA's IM requirements,\16\ it highlights many of the 
probable impacts of oil pipeline spills into coastal areas. The rupture 
released 2,934 barrels (approximately 123,000 gallons) of heavy crude 
oil near Santa Barbara, California. Approximately 500 barrels (21,000 
gallons) of crude oil reached the Pacific Ocean near Refugio State 
Beach. On March 13, 2020, the U.S. Department of Justice (DOJ) 
announced a settlement that required Plains pay over $60 million in 
penalties, clean-up costs, and natural resources assessment costs and 
damages.\17\ This spill is estimated to have contaminated over 3,000 
acres of shoreline, subtidal, and benthic habitats, and resulted in the 
injury or death to hundreds of birds and marine mammals.\18\ In 
addition to the severe ecological impacts, the spill itself and cleanup 
activities significantly limited recreational and commercial use of the 
oil contaminated coastal beaches and surrounding areas.
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    \15\ PHMSA, ``Failure Investigation Report: Plains Pipeline, LP, 
Line 901 Crude Oil Release, May 19, 2015--Santa Barbara County, 
California'' (May 2016), https://www.phmsa.dot.gov/foia/plains-pipeline-lp-line-901-failure-investigation-report (last accessed 
June 21, 2021).
    \16\ PHMSA and others brought a civil suit against Plains 
alleging, inter alia, that numerous violations of PHMSA's IM 
requirements contributed to the accident. See United States of 
America, et al. v. Plains All America Pipeline, L.P., Docket No. 
2:20-cv-02415, Complaint at ]] 130-158 (C.D. Cal. Mar. 13, 2020). 
Plains acceded to a consent decree resolving those violations. See 
United States of America, et al. v. Plains All America Pipeline, 
L.P., Docket No. 2:20-cv-02415, Consent Decree at ] 70 (C.D. Cal. 
Mar. 13, 2020).
    \17\ DOJ, ``U.S. Pipeline Company to Modify its National 
Operations to Implement Safeguards Resulting from Oil Spill'' (Mar. 
13, 2020), https://www.justice.gov/opa/pr/us-pipeline-company-modify-its-national-operations-implement-safeguards-resulting-oil-spill (last accessed April 2, 2021).
    \18\ California Department of Fish and Wildlife et. al., 
``Refugio Beach Oil Spill: Draft Damage Assessment and Restoration 
Plan/Environmental Assessment'' (April 22, 2020), https://wildlife.ca.gov/OSPR/NRDA/Refugio (last accessed June 21, 2021).
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    Another accident demonstrating the significant adverse 
environmental consequences of pipeline spills into bodies of water was 
the rupture of Enbridge Line 6B, which occurred on July 26, 2010, near 
the town of Marshall, Michigan. While this spill occurred on a segment 
of pipe within an HCA \19\ and along an inland, freshwater river, 
rather than along the coast, the adverse impacts resulting from this 
spill are similar to what could occur if a spill occurred in connecting 
waters of the Great Lakes estuaries, and other marine waters up to the 
head of tidal influence, which are specifically addressed in this rule. 
This accident occurred when a 30-inch pipeline ruptured, spilling 
approximately 20,000 barrels of diluted bitumen into the Kalamazoo 
River and surrounding wetlands. The release contaminated 40 miles of 
the Kalamazoo River, and cleanup efforts were complicated by the 
propensity for diluted bitumen and other heavy crude oils to sink. As a 
result of the spill, the impacted segment of the river remained closed 
for public, recreational use for nearly two years.\20\ Environmental 
impacts continued in the years

[[Page 73178]]

following the spill, including decreases in fish abundance and variety 
in downstream areas until at least 2013.\21\ Enbridge agreed to pay 
over $1 billion in cleanup costs and $177 million in a settlement with 
DOJ, including $61 million in penalties.\22\ Other events occurring on 
pipelines in or that could affect HCAs, such as a 2018 anchor strike 
that dented the submerged Enbridge Line 5 in the Straits of 
Mackinac,\23\ and the October 2021 discovery of a large crude oil 
release from a pipeline near Huntington Beach, CA,\24\ further 
highlight the damage that can be done by a pipeline spill into the 
Great Lakes or other coastal waters.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    As discussed in section VI.B below, PHMSA was able to use the 
existing expert agency definition and data to identify the Great Lakes; 
PHMSA had already included the Great Lakes and connecting waters in the 
NPMS consistent with the existing statutory definition in 33 U.S.C. 
1268. The Great Lakes and connecting waters include Lake Ontario, Lake 
Erie, Lake Huron (including Lake St. Clair), Lake Michigan, and Lake 
Superior, and the connecting channels (Saint Mary's River, Saint Clair 
River, Detroit River, Niagara River, and the Saint Lawrence River to 
the Canadian border). This GIS dataset similarly relies on NOAA 
shoreline data.
    The term ``coastal beach'' is defined in the PIPES Act of 2020, and 
therefore, defined in this IFR as ``any land between the high- and low-
water marks of certain coastal waters.'' While earlier public meetings 
considered how the term ``coastal beach'' might apply to different 
shoreline types, the term ``coastal beach'' as defined the PIPES Act of 
2020 directed that ``coastal beach'' covers ``any land between the 
high- and low-water marks of certain coastal waters,'' meaning 
intertidal land adjoining coastal waters, regardless of geomorphologic 
characteristics. Further, the Great Lakes are considered non-tidal.\35\
---------------------------------------------------------------------------

    \35\ NOAA, ``Do the Great Lakes Have Tides?'' https://oceanservice.noaa.gov/facts/gltides.html (last accessed June 21, 
2021).
---------------------------------------------------------------------------

B. The Great Lakes in the NPMS

    On October 21, 2019, PHMSA added the Great Lakes as a USA in the 
NPMS based on the mandate in Section 19 of the PIPES Act of 2016.\36\ 
As described above, PHMSA defined the Great Lakes using an existing 
statutory definition at 33 U.S.C. 1268. PHMSA then selected 
corresponding geospatial information from the NOAA U.S. State Submerged 
Lands dataset to map the Great Lakes in the NPMS as a USA ecological 
resource based on that definition. PHMSA has not received any feedback 
on this approach and has determined that this information is consistent 
with the updated mandates in the PIPES Act of 2020, as it includes each 
of the Great Lakes and the connecting waters. Nevertheless, PHMSA seeks 
comments on the selection of this definition of the Great Lakes and the 
mapping data used to represent the location of the Great Lakes.
---------------------------------------------------------------------------

    \36\ PHMSA, Press Release, ``PHMSA ID's Great Lakes as an 
Ecological Resource in NPMS'' (Oct. 21, 2019), https://www.phmsa.dot.gov/news/phmsa-ids-great-lakes-ecological-resource-npms.
---------------------------------------------------------------------------

C. Certain Coastal Waters and Coastal Beaches in the NPMS

    As described above, PHMSA maintains GIS data of HCAs, including 
USAs, as part of the NPMS. PHMSA intends to map both ``certain coastal 
waters'' and ``coastal beaches'' as USAs in a single GIS dataset 
available from the NPMS using a composite of the data sets described in 
this section. The datasets prepared by the EPA and NOAA described here 
are developed through the collection of tidal and environmental data. 
These data, collected over years, establishes the location of ``coastal 
beaches'' and

[[Page 73180]]

``certain coastal waters'' as those terms were defined by Congress.
    ``Coastal beaches,'' as defined in the PIPES Act of 2020, extend 
from the high water mark to the low water mark, and the territorial sea 
portion of certain coastal waters extend from approximately the low 
water mars to the seaward extent of the U.S. territorial sea. Thus, the 
areas occupied by ``certain coastal waters'' and ``coastal beaches'' 
are contiguous and may overlap. This means that ``coastal beaches'' and 
the ``territorial sea of the United States'' GIS data to be mapped in 
the NPMS will cover all areas from near the line of high water to the 
seaward limit of the territorial sea of the United States. This entire 
area must now be considered as an ecological USA--and by extension, an 
HCA--for compliance with the IM requirements.
    To provide GIS data representing the location of ``certain coastal 
waters'' and ``coastal beaches,'' PHMSA intends to create a single GIS 
dataset using a combination of data available from EPA and NOAA. 
Specifically, PHMSA intends to use the EPA Clean Water Act data 
prepared by NOAA, the EPA Estuary Data Mapper, and the NOAA Sea Level 
Rise Mean Higher High Water Data to create a single ``coastal beach'' 
and ``certain coastal waters'' USA dataset in the NPMS. PHMSA believes 
that aggregating these datasets from expert scientific Federal agencies 
represents the best-available national data on the location of 
``certain coastal waters'' (the territorial sea of the United States, 
marine and estuarine waters of the United States up to the head of 
tide, and the Great Lakes), and ``coastal beaches'' (land between the 
high and low water marks). Each of these parent datasets are prepared 
and published by the expert agencies within the Federal government and 
are available to the public for download and review. The use of 
publicly available data addresses concerns about the availability of 
proprietary and security-sensitive information that were raised by the 
Pipeline Safety Trust and others during public meetings. PHMSA invites 
comments on the use of these datasets to satisfy the requirements of 
the PIPES Act of 2020.
    PHMSA will use a portion of the GIS data NOAA compiled for EPA in 
compliance with the Clean Water Act (CWA) to represent the territorial 
sea portion of its new GIS dataset. Like the definition in the PIPES 
Act of 2020, the CWA refers to the territorial sea of the United States 
and the Great Lakes. The NOAA CWA dataset represents GIS data for the 
Great Lakes and connecting waters, as well as waters from the mean 
high-water line to the 12 nautical mile line (i.e., the seaward extent 
of the U.S. territorial sea per Presidential Proclamation No. 5928) and 
the 3 nautical mile line used for certain Federal laws existing on or 
before the issuance of Presidential Proclamation No. 5928, including 
the CWA. The landward boundary in the CWA dataset is defined by the 
NOAA Medium Resolution Shoreline Product \37\ for the contiguous U.S., 
and other Federal data \38\ for the shoreline in Alaska, Hawaii, and 
Puerto Rico. For the purposes of identifying the location of ``certain 
coastal waters,'' the seaward extent of the U.S. territorial sea is 
mapped at the 12 nautical mile line depicted in the NOAA CWA dataset in 
accordance with the meaning of that term in Presidential Proclamation 
No. 5928 and international law. The NOAA Medium Resolution Shoreline 
represents the line of mean high water.\39\ These data are compiled 
from official NOAA nautical charts and represents the definitive map of 
U.S. maritime boundaries (such as the seaward extent of the U.S. 
territorial sea) under U.S. and international law.
---------------------------------------------------------------------------

    \37\ NOAA, ``NOAA Medium Resolution Shoreline'' (Apr. 7, 2000), 
https://shoreline.noaa.gov/data/datasheets/
medres.html#:~:text=Abstract%3A%20NOAA's%20medium%2Dresolution%20shor
eline,set%20created%20for%20general%20use.&text=The%20data%20set%20wa
s%20created,Ocean%20Resources%20Conservation%20and%20Assessment 
(last accessed June 21, 2021).
    \38\ For more information on these datasets, see the ``Lineage'' 
section of the metadata for this dataset https://www.fisheries.noaa.gov/inport/item/48856.
    \39\ See NOAA, ``Definition of `Mean High Water' in Tides and 
Currents Glossary'' https://tidesandcurrents.noaa.gov/glossary.html 
(last accessed June 21, 2021).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \40\ EPA, ``Frequently Asked Questions about Estuary Data 
Mapper'' https://www.epa.gov/hesc/frequent-questions-about-estuary-data-mapper-edm (last accessed June 21, 2021).
---------------------------------------------------------------------------

    The term ``coastal beaches'' includes all land between the high and 
low-water marks. The Medium Resolution Shoreline used in the EPA map of 
the U.S. territorial sea represents a location between high and low-
water marks. As stated earlier, the Medium Resolution Shoreline 
represents the mean high water of the shore. NOAA defines ``mean high 
water'' as ``the average of all high-water heights observed over the 
National Tidal Datum Epoch.'' \41\ In contrast, NOAA defines the 
``high-water mark'' as ``[a] line or mark left upon tide flats, beach, 
or along shore objects indicating the elevation of the intrusion of 
high water. The mark may be a line of oil or scum on along shore 
objects, or a more or less continuous deposit of fine shell or debris 
on the fore shore or berm.'' \42\ Because this physical line changes 
with each tidal shift, NOAA measures and records the ``higher high 
water'' (HHW), which is the ``higher of the two high waters of a tidal 
day where the tide is semidiurnal (occurring twice daily).'' The 
average of the HHW values is the tidal datum (i.e., a fixed starting 
point) known as the ``mean higher high water'' (MHHW).
---------------------------------------------------------------------------

    \41\ NOAA, ``Tidal Datums'' https://tidesandcurrents.noaa.gov/datum_options.html (last accessed June 21, 2021).
    \42\ NOAA, ``Definition of `High Water Mark' in ``Glossary of 
the NOAA Shoreline website'' https://shoreline.noaa.gov/glossary.html (last accessed June 21, 2021).
---------------------------------------------------------------------------

    As described above, the ``high-water mark'' changes daily because 
it is influenced by meteorological, climate, and surf conditions. PHMSA 
is not aware of any national data representative of the physical high-
water mark, which is dynamic and changes day to day. In the absence of 
this information, PHMSA will use the MHHW GIS data product from NOAA's 
Sea Level Rise Viewer to approximate

[[Page 73181]]

the location of the dynamic high-water mark. The NOAA Sea Level Rise 
Viewer includes digital elevation models and the NOAA tidal datum of 
mean higher high water. In certain locations and in certain 
meteorological conditions, the MHHW could be lower than a high-water 
mark. Nonetheless, the MHHW is the most accurate dataset that PHMSA is 
aware of for identifying the high-water mark and marine and estuarine 
waters up to the head of tidal influence. PHMSA acknowledges that MHHW 
may not precisely align with the exact physical high-water mark 
(indicated by fine debris or scum line) at any given time. In any 
event, the IM requirements apply not only to segments of hazardous 
liquid pipelines that cross an HCA but also to any pipeline segments 
that ``could affect'' an HCA. In determining which segments ``could 
affect'' an area, operators need to consider the terrain around the 
pipeline and natural forces inherent in the area, including tidal 
forces, meteorological conditions, and flood zones, when determining 
which pipeline segments could affect an HCA (See section I.B. of 
appendix C to part 195).

D. Requirements for Pipelines That Could Affect HCAs

    As described in section II, changes to the definition of the term 
``USA'' affect the hazardous liquid pipelines subject to IM 
requirements. Operators of hazardous liquid pipelines that could affect 
the Great Lakes, ``certain coastal waters,'' and ``coastal beaches'' 
must include those segments in an IM program. Based on a geospatial 
analysis using data in the NPMS, PHMSA estimates that 2,905 additional 
miles of hazardous liquid pipelines, primarily in states adjoining the 
Gulf of Mexico, will be subject to liquid IM requirements due to this 
IFR. This estimate reflects segments located within \1/4\ mile of any 
of the newly defined USAs but are not located within \1/4\ mile of the 
location of existing HCAs described in existing Sec. Sec.  195.6 and 
195.450. Based on this analysis, PHMSA anticipates that most affected 
operators have an existing IM program and will be able to extend that 
plan to include the newly covered segments. This analysis is described 
in the RIA for this IFR.
    In addition, operators of onshore hazardous liquid pipelines 
submerged more than 150 feet below the surface of water that could 
affect an HCA must comply with enhanced requirements for submerged 
pipelines in self-executing provisions described in Sec.  120(d) of the 
PIPES Act of 2020, codified at 49 U.S.C. 60109(g). That section of the 
pipeline safety laws (49 U.S.C. 60101 et seq.) requires that operators 
perform annual in-line inspections, annual route surveys, and have (and 
follow) procedures for assessing the potential impacts from third-party 
damage from vessels and maritime equipment, including anchors and 
anchor chains.
    The presence of a USA also effects which onshore gathering lines 
are subject to part 195 safety requirements as regulated rural 
gathering lines. Section 195.2 defines a rural area as being outside 
the limits of any incorporated or unincorporated city, town, village, 
or any other designated residential or commercial area such as a 
subdivision, a business or shopping center, or community development. 
Currently, an onshore rural gathering line is subject to safety 
requirements in Sec.  195.11 if the pipeline has a nominal diameter 
from 6\5/8\ inches to 8\5/8\ inches, has a stress level greater than 20 
percent of the specified minimum yield strength (or a pressure of 125 
pounds per square inch gauge (psig) for non-steel pipe or if the stress 
level is not known), and is located within \1/4\-mile of a USA. 
Defining new USAs may result in additional pipelines being classified 
as regulated rural gathering lines. However, PHMSA expects that the 
effect of the IFR on the mileage of onshore regulated rural gathering 
lines will be limited since rural gathering lines are not generally 
located along the coasts near most of the new USAs established by the 
IFR. Further, those rural gathering lines that are near the coasts may 
already be subject to part 195 requirements (pursuant to Sec.  195.1) 
if they are either located in a non-rural area, cross commercially 
navigable waterways, or are located in the inlets of the Gulf of 
Mexico.\43\ As discussed in the RIA, PHMSA estimates that 58.5 miles of 
currently unregulated rural gathering lines will become regulated, and 
that the resulting regulatory burden for those lines will be $63 
thousand in the first year of analysis, and $15 thousand in years two 
through ten. PHMSA welcomes comment on its assumptions regarding the 
mileage and regulatory burden for currently unregulated gathering lines 
that become regulated as a result of the IFR, as well as corresponding 
safety benefits.
---------------------------------------------------------------------------

    \43\ PHMSA also notes that gathering lines larger than 8\5/8\ 
inches are already subject to part 195 safety requirements.
---------------------------------------------------------------------------

    Rural gathering lines between 6\5/8\ inches and 8\5/8\ inches in 
diameter that become regulated rural gathering lines as a result of the 
IFR become subject to the requirements listed in Sec.  195.11(b). An 
operator of a regulated rural gathering line must comply with reporting 
requirements in subpart B of part 195; establish a maximum operating 
pressure of the pipeline in accordance with Sec.  195.406; install and 
maintain line markers in accordance with Sec.  195.410; establish and 
carry out a public education program in accordance with Sec.  195.440; 
establish and carry out a damage prevention program in accordance with 
Sec.  195.442; comply with corrosion control requirements in subpart H; 
establish and carry out a program to identify internal corrosion in 
accordance with Sec.  195.11(b)(10); and comply with operator 
qualification program requirements in accordance with subpart G to part 
195 and Sec.  195.505. A new or replaced regulated rural gathering line 
must also comply with the initial design, installation, construction 
inspection, and testing requirements in part 195, unless that pipeline 
is being converted to service under Sec.  195.5. Pursuant to Sec.  
195.11(c), an operator most comply with Sec.  195.11(b)(2)-(11) within 
6 months from the date that a new USA has been identified, except for 
the requirements for corrosion control, which are subject to the 
compliance timelines in part 195, subpart H.
    Finally, the part 195 requirements applicable to low-stress 
pipelines located in rural areas depend on the pipeline's proximity to 
a USA. Section 195.12 defines a low-stress rural pipeline as a line 
located in a rural area and having a maximum operating pressure 
corresponding to a stress level of 20 percent or less of the specified 
minimum yield strength (or if the stress level is unknown, or for non-
steel pipelines, a pressure less than or equal to 125 psig). A rural 
low-stress line that is located within \1/2\ mile of a USA (or 
alternatively, that could affect an HCA as determined in Sec.  
195.452(a)) is a Category 1 or Category 2 rural low-stress line that 
must comply with all of the safety requirements in part 195. Other 
rural low-stress pipelines not within \1/2\ mile of a USA are Category 
3 lines that must comply with all the requirements of part 195 except 
the IM program requirements in Sec.  195.452. Pursuant to Sec.  
195.12(e), a Category 3 rural low-stress line or any other pipeline 
that becomes a Category 1 or Category 2 rural low-stress line must 
comply with the IM program requirements within 12 months following the 
date the USA is identified (i.e., the effective date of this IFR). IM 
program requirements are described in detail above.
    Because the IFR expands the scope of USAs, some Category 3 rural 
low-stress lines may become Categories 1 or 2 rural low stress lines 
and, therefore, would be

[[Page 73182]]

subject to IM program requirements at Sec.  195.452(a). However, 
similar to the discussion of onshore regulated rural gathering above 
and as explained in the RIA, PHMSA understands relatively few rural 
low-stress pipelines will be affected by the IFR. Newly impacted rural 
low-stress lines located within \1/4\- mile of the new USAs are 
included in the RIA mileage estimate. However, PHMSA did not perform a 
separate analysis of rural-low stress lines located between \1/4\ mile 
and \1/2\ mile of a newly designated USA. PHMSA expects the (current) 
Category 3 pipeline mileage which could be so affected to be minimal 
given that much of the rural low-stress lines near a coast would cross 
navigable waters and therefore would already be subject to IM program 
requirements under Sec.  195.1. However, in 2020, operators reported 
only 3,100 miles of rural low-stress hazardous liquid lines total 
across all reported categories. Similar to the discussion of regulated 
rural gathering lines, much of the pipeline mileage near the new USAs 
(which are mostly along the coasts) is already subject to IM program 
requirements pursuant to the general applicability of part 195 to 
pipelines crossing navigable waters or that are located in the inlets 
of the Gulf of Mexico in Sec.  195.1(a). Further, operators of rural 
low-stress liquid lines have the option to perform an HCA could-affect 
analysis under Sec.  195.452(a) rather than use the \1/2\-mile 
criteria.

VII. Effective Date and Comments

    This IFR is effective without advance notice and public comment as 
the amendments to the CFR in the IFR are not subject to agency 
discretion. Section 19 of the PIPES Act of 2016, as amended by the 
PIPES Act of 2020 states that the Secretary ``shall revise section 
195.6 [. . .] to explicitly state that the Great Lakes, coastal beaches 
and certain coastal waters are USA ecological resources.'' The PIPES 
Act of 2020 further specifies statutory definitions for each of these 
terms. Pursuant to the plain language of the mandates from the PIPES 
Act of 2016 and the PIPES Act of 2020, the IFR adopts each of these 
statutory definitions into Sec.  195.6 verbatim. While PHMSA has no 
discretion regarding the amendments to Sec.  195.6 mandated by the Act, 
this IFR invites comments on the national and publicly available GIS 
datasets to represent these new Ecological USA definitions in the NPMS.
    PHMSA will consider all relevant, substantive comments in this 
area. PHMSA encourages interested parties to submit comments that: (1) 
Identify the amendments being commented on and the appropriate section 
numbers; (2) provide justification for their support or opposition to 
the amendments, especially data on safety risks and cost burdens; and 
(3) provide specific alternatives if appropriate.

VIII. Good Cause Exception

    The Administrative Procedure Act (APA, 5 U.S.C. 551 et seq.) 
permits an agency to issue a final rule without first publishing a 
proposed rule for public comment when it demonstrates ``good cause'' 
that notice and comment is ``impracticable, unnecessary, or contrary to 
the public interest.'' 5 U.S.C. 552 (b)(3)(B). This exception is 
narrow, and PHMSA is proceeding with an IFR only in light of the 
specific instructions from Congress in the PIPES Act of 2020 that 
render comment both unnecessary and impracticable.
    Prior notice and comment are unnecessary for this rulemaking 
because Congress, in the PIPES Act of 2020, provided clear, defined 
terms and required PHMSA to update its regulations to incorporate those 
terms. Specifically, Congress clarified that ``certain coastal waters'' 
means the territorial sea of the United States, the Great Lakes, and 
marine and estuarine waters up to the head of tidal influence. Congress 
also clarified which areas must be designated as a ``coastal beach.'' 
These statutory definitions resolved uncertainties within language in 
the PIPES Act of 2016 to expand the hazardous liquid pipelines subject 
to IM requirements. Congress did not provide discretion for PHMSA to 
adopt the regulatory amendments in this IFR, requiring PHMSA to 
``revise Sec.  195.6(b) to explicitly state that the Great Lakes, 
coastal beaches, and certain coastal waters are USA ecological 
resources for purposes of determining whether a pipeline is in a high 
consequence area.''
    Notice and comment are also unnecessary because the definitions of 
the terms that Congress required PHMSA to include in its regulations 
are also further specifically defined by other expert Federal agencies, 
as described in the paragraphs that follow.
    ``The territorial sea of the United States'' has a long-established 
meaning based on Presidential Proclamation 5928, international law, and 
NOAA data sets. Each of these authorities define and designate the 
``territorial sea of the United States,'' as extending 12 nautical 
miles (approximately 13.8 miles) from the ``baseline.'' NOAA is 
responsible for delineating the ``baseline,'' based on its tidal datum 
Mean Lower Low Water, or the lowest of the two low tides per day 
averaged over an 18.6-year period.
    Next, NOAA has defined the boundaries of ``marine waters of the 
United States.'' While the term ``marine waters'' is not specifically 
defined in the U.S. Code, NOAA has defined ``marine waters'' as those 
waters subject to tidal influence. The seaward boundary of ``marine 
waters'' would be the extent of ``the territorial seas of the United 
States,'' as described above. The landward boundary of the ``marine 
waters'' is designated by NOAA's polygon GIS data identifying the MHHW 
values. These values are the averages of daily HHW recordings from NOAA 
tide stations over a period of 18.6 years.
    EPA defines the boundaries of ``estuarine waters of the United 
States.'' The Clean Water Act authorizes EPA to define and map 
estuarine resources pursuant to the National Estuary Program provided 
for in the Clean Water Act (33 U.S.C. 1330). As described above, EPA 
similarly defines estuaries as subject to tidal influence. The EPA has 
also made estuary polygon data available in EPA's Estuary Data Mapper 
(EDM) that maps approximately 2,000 named estuaries identified using 
EPA's Environmental Monitoring and Assessment Program's National 
Coastal Condition Assessment.
    NOAA has also defined the terms used in Congress' definition for 
``coastal beaches.'' The PIPES Act of 2020 defines the term ``coastal 
beach'' to mean any land between the high- and low-water marks of 
certain coastal waters. As discussed above, NOAA has defined and mapped 
the MHHW, which is an authoritative tidal datum for approximating a 
``high water mark.'' In contrast, the low water mark need not be 
defined for the purposes of the PIPES Act of 2020 because everything 
seaward of the high water mark is included in either the ``territorial 
sea of the United States,'' or the ``marine and estuarine waters of the 
United States up to the head of tidal influence''--terms which, as 
explained above, have been defined and mapped by NOAA and EPA.
    Given the above, PHMSA has determined that it lacks discretion to 
alter or consider alteration of the long-standing definitions or 
practical understandings of ``the territorial sea of the United 
States,'' ``marine waters of the United States,'' ``estuarine waters of 
the United States,'' and ``coastal beaches.'' Similarly, PHMSA lacks 
discretion to alter or consider redesignation of the GIS polygons as 
depicted in NOAA's Clean Water Act data, the EPA EDM, and the NOAA Sea 
Level Rise MHHW Data. Changes to these definitions and designations 
would be inaccurate, would cause

[[Page 73183]]

confusion, and would be an unnecessary waste of government resources. 
Therefore, a traditional notice and comment rulemaking is unnecessary.
    The Congressionally-specified regulatory language, along with an 
aggressive Congressional deadline, also render traditional notice and 
comment impracticable. In light of the earlier challenges PHMSA faced 
in defining and mapping the undefined terms ``marine coastal waters'' 
and ``coastal beaches,'' Congress in the PIPES Act of 2020 intervened 
in a pending PHMSA rulemaking (under the same RIN as this rulemaking) 
to ensure PHMSA had the tools--clear, defined terms in place of the 
ambiguous language in the PIPES Act of 2016--to resolve the bases for 
PHMSA's protracted delay in responding to an earlier rulemaking 
mandate. Congress also demanded PHMSA ``complete'' those regulatory 
amendments within 90 days of enactment of the PIPES Act of 2020. 
Congress' expectations regarding the need for prompt PHMSA action to 
complete this rulemaking is understandable given the history of 
hazardous liquid pipeline accidents that have affected or threatened 
coastal waters and the Great Lakes and other sensitive ecosystems. The 
negative environmental and human health impacts of hazardous liquid 
releases such as the 2010 Marshall, MI and 2015 Plains accidents 
persist for years, even despite best clean-up efforts. The 2018 anchor 
strike on Enbridge Line 5 further underscored the urgency of updating 
PHMSA's regulatory framework to address those risks. More recently, 
members of Congress have also identified the October 2021 discovery of 
a large crude oil release from a pipeline near Huntington Beach, CA, as 
evidence of the need for prompt PHMSA action to complete this 
rulemaking.\44\
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    \44\ See Letter from Reps. Graves & Crawford to Acting PHMSA 
Administrator Brown (Oct. 14, 2021), https://republicans-transportation.house.gov/news/documentsingle.aspx?DocumentID=405635.
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    Further delay of this IFR's regulatory revisions to accommodate 
notice and comment procedures would, therefore, frustrate an aggressive 
Congressional timeline for prompt completion of the specific regulatory 
amendments that Congress understood as being necessary to align PHMSA's 
IM regulations with the grave public safety and environmental risks 
posed by hazardous liquid lines. For those reasons, traditional notice 
and comment procedures are impracticable.

IX. Regulatory Analyses and Notices

Legal Authority for This Rulemaking

    This IFR is published under the authority of the Federal Pipeline 
Safety Laws. Section 60102 authorizes the Secretary of Transportation 
to issue regulations governing the design, installation, inspection, 
emergency plans and procedures, testing, construction, extension, 
operation, replacement, and maintenance of pipeline facilities. The 
Secretary has delegated this authority to the PHMSA Administrator under 
49 CFR 1.97. Further, Section 19 of the PIPES Act of 2016, as amended 
by the PIPES Act of 2020, requires the Secretary of Transportation to 
revise Sec.  195.6 to explicitly state in Sec.  195.6 that the Great 
Lakes, certain coastal waters, and coastal beaches are USAs for the 
purpose of determining whether a hazardous liquid pipeline is in or 
could affect an HCA.

Executive Order 12866 and DOT Policies and Procedures for Rulemaking

    Executive Order 12866 (``Regulatory Planning and Review'') \45\ 
requires that agencies ``should assess all costs and benefits of 
available regulatory alternatives, including the alternative of not 
regulating.'' Agencies should consider quantifiable measures and 
qualitative measures of costs and benefits that are difficult to 
quantify. Further, Executive Order 12866 requires that ``agencies 
should select those [regulatory] approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity), unless a 
statute requires another regulatory approach.'' Similarly, DOT Order 
2100.6A (``Rulemaking and Guidance Procedures'') requires that 
regulations issued by PHMSA and other DOT Operating Administrations 
should consider an assessment of the potential benefits, costs, and 
other important impacts of the proposed action and should quantify (to 
the extent practicable) the benefits, costs, and any significant 
distributional impacts, including any environmental impacts. The 
Federal pipeline safety laws at 49 U.S.C. 60102(b)(5) further authorize 
only those safety requirements whose benefits (including safety and 
environmental benefits) have been determined to justify their costs.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \51\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \52\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \53\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

    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


