[Federal Register Volume 85, Number 214 (Wednesday, November 4, 2020)]
[Proposed Rules]
[Pages 70124-70126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24011]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 192 and 195

[Docket No. PHMSA-2019-0199]


Pipeline Safety: Midstream Facilities Frequently Asked Questions

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

ACTION: Notification and request for comments.

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SUMMARY: PHMSA is making available for comment a set of draft 
frequently asked questions (FAQs) regarding federal oversight of 
midstream processing facilities. Specifically, this guidance will 
delineate where PHMSA and the Occupational Safety and Health 
Administration (OSHA) will each perform inspection and enforcement 
activities for midstream processing facilities where there is 
overlapping authority. The proposed guidance consists of a set of seven 
FAQs that were developed by the Midstream Processing Working Group 
(Working Group) established by the Technical Pipeline Safety Standards 
Committee, also known as the Gas Pipeline Advisory Committee (GPAC), 
and the Technical Hazardous Liquid Pipeline Safety Standards Committee, 
also known as the Liquid Pipeline Advisory Committee (LPAC).

DATES: Persons interested in submitting comments on the draft FAQs must 
do so by January 4, 2021.

ADDRESSES: You may submit comments, which should be identified by 
docket number PHMSA-2019-0199, by any of the following methods:
     Federal eRulemaking Portal: Comments may be submitted to 
http://www.regulations.gov. Please follow the online instructions to 
submit comments.
     Mail: Comments may be submitted by mailing them to the 
Dockets Management System, U.S. Department of Transportation, Dockets 
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001.
     Hand Delivery: Comments may be submitted by hand-
delivering them to 1200 New Jersey Avenue SE, West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001. Comments may be 
delivered between 9 a.m. and 5 p.m. ET, Monday through Friday, except 
for Federal holidays.
     Fax: Comments may be faxed to 202-493-2251.
     Instructions: Identify docket number PHMSA-2019-0199 at 
the beginning of your comments. If you submit your comments by mail, 
you must submit two copies. If you wish to receive confirmation that 
PHMSA received your comments, you must include a self-addressed stamped 
postcard. Internet users should submit comments at http://www.regulations.gov.
     Privacy Act: DOT may solicit comments from the public 
regarding certain general notices. 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 (FOIA) (5 U.S.C. 552), CBI is exempt from 
public disclosure. If your comments responsive to this document 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 document, it is important that you clearly designate 
the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask 
PHMSA to give confidential treatment to information you give to the 
agency by taking the following steps: (1) Mark each page of the 
original document submission containing CBI as ``Confidential''; (2) 
send PHMSA, along with the original document, a second copy of the 
original document with the CBI deleted; and (3) explain why the 
information you are submitting is CBI. Unless you are notified 
otherwise, PHMSA will treat such marked submissions as confidential 
under FOIA, and they will not be placed in the public docket of this 
notification. Submissions containing CBI should be sent to Sayler 
Palabrica at sayler.palabrica@dot.gov. Any commentary PHMSA receives 
that is not specifically designated as CBI will be placed in the public 
docket for this rulemaking.
     Docket: The docket containing background documents and 
received comments is available at http://www.regulations.gov. Once on 
this site, please follow the online instructions for accessing the 
dockets. Alternatively, you may review these documents in person at the 
street address listed above.

[[Page 70125]]


FOR FURTHER INFORMATION CONTACT:  Sayler Palabrica, Transportation 
Specialist, at 202-366-0559.

SUPPLEMENTARY INFORMATION: PHMSA provides written clarification 
regarding the pipeline safety regulations found at 49 CFR parts 190-199 
in the form of FAQs and other guidance materials. PHMSA is requesting 
public comment on a set of draft FAQs that were developed by the 
Working Group that was established by the GPAC and LPAC. These draft 
FAQs are intended to clarify when each of PHMSA or OSHA intends to 
exercise its respective regulatory inspection and enforcement authority 
over midstream processing facilities involved in pipeline 
transportation of energy products. The intent of this guidance is to 
ensure that there is no confusion or unnecessary gaps or overlaps in 
Federal oversight of midstream processing facilities. All guidance, 
including these draft FAQs, is intended to be explanatory in nature. 
FAQs are provided to help the regulated community understand how to 
comply with the regulations, but they are not substantive rules 
themselves and do not create legally enforceable rights, assign duties, 
or impose new obligations not otherwise contained in the existing 
regulations and standards. However, an operator who is able to 
demonstrate compliance with the FAQs is likely to be able to 
demonstrate compliance with the relevant regulations. If a different 
course of action is taken by an operator, the operator must be able to 
demonstrate that its conduct is in accordance with the regulations.
    The draft FAQs are included in this document. Comments submitted in 
response to this document and other supporting documents may be found 
in Docket No. PHMSA-2019-0199 at https://www.regulations.gov. Before 
finalizing the FAQs, PHMSA will consider all substantive comments 
received on or before the comment closing date. Comments received after 
the closing date will be considered to the extent practicable. Once 
finalized, the FAQs will be posted on PHMSA's public website at https://www.phmsa.dot.gov/about-phmsa/phmsa-faqs.

Background

    Natural gas, crude oil, and associated fluids typically go through 
a number of processing steps before they can be delivered to end users 
as refined petroleum products, natural gas liquids, natural gas, and 
other products. Some of the facilities where these processes take place 
are midstream processing facilities downstream of initial production 
but upstream of end users.
    For the purposes of this guidance document, a ``midstream 
processing facility'' is a processing facility that receives products 
being transported by PHMSA-jurisdictional pipelines and re-injects 
those products for continued transportation by pipeline. In other 
words, a midstream processing facility is a processing facility with 
piping or storage that is engaged in the transportation of gas or 
hazardous liquids by pipeline, and is therefore a pipeline facility 
subject to PHMSA jurisdiction. The pipeline systems within or 
associated with midstream processing facilities may be subject to 
regulation by one or more Federal agencies, depending on the facility's 
purpose and configuration. PHMSA regulates the safety of 
transportation-related pipeline systems associated with midstream 
processing facilities in 49 CFR parts 190-199, while OSHA regulates 
safety within midstream processing facilities using the Process Safety 
Management (PSM) regulations (29 CFR 1910.119). Uncertainty regarding 
where each of these respective regulatory authorities begins and ends 
in connection with midstream processing facilities has led to confusion 
among regulated entities and unnecessary duplication of regulatory 
efforts by the Federal Government.
    To address these issues, the GPAC and LPAC established the Working 
Group in 2014. The Working Group consisted of members representing 
PHMSA, OSHA, and the midstream processing industry. The goal of the 
Working Group was to better understand and improve the safety of 
midstream processing facilities by increasing clarity and eliminating 
unnecessary gaps and overlaps in Federal safety oversight. In 
particular, the Working Group was tasked with evaluating the 
equivalency of PHMSA and OSHA midstream processing facility safety 
requirements; identifying means to delineate exercise of inspection and 
enforcement responsibilities (``regulatory oversight activities'') 
between the two agencies by clarifying the inlet and outlet boundaries 
of midstream processing facilities; and addressing the oversight of 
midstream processing facilities with pass-through, bypass, and storage 
configurations, including storage-related piping.
    The Working Group met on several occasions in 2014 and 2015. During 
that time, the Working Group found that PHMSA's pipeline safety 
regulations in 49 CFR parts 190-199 and OSHA's PSM requirements at 29 
CFR 1910.119 provide equivalent safety for midstream processing 
facilities. However, the enforcement of both their regulatory regimes 
to the same facilities created unnecessary contradictions and 
confusion, potentially decreasing safety. Therefore, in the interest of 
improving safety, ensuring effective government oversight, and reducing 
regulatory redundancy, PHMSA and OSHA agreed to delineate where they 
each would perform regulatory oversight activities for midstream 
processing facilities based on the predominate use of the facilities in 
question. As discussed during the Working Group's presentation to the 
GPAC and the LPAC on August 26, 2015, in order to apply the FAQs, an 
operator will be expected to make records and documentation that prove 
the predominate use of a facility available to PHMSA and OSHA for 
review and verification. See pages 71-75 of the transcript for the 
second day of the meeting, available in the docket for this document 
and at https://primis.phmsa.dot.gov/meetings/MtgHome.mtg?mtg=105&nocache=8221.
    These FAQs reflect agreement by PHMSA and OSHA to prioritize safety 
and regulatory clarity in regulatory oversight activities; however, 
nothing in these FAQs changes the agencies' statutory authority with 
respect to midstream processing facilities. For example, PHMSA may 
still issue a corrective action order under 49 U.S.C. 60112 or a safety 
order under 49 U.S.C. 60117(l) if a safety issue is identified.
    The Working Group proposed seven draft FAQs to help clarify the 
delineation of regulatory oversight activities between PHMSA and OSHA 
for the regulated industry and Federal and State pipeline safety 
inspection and enforcement staff. PHMSA is soliciting public comments 
on these draft FAQs, which address the following issues:
     Defining the terms ``processing'' and ``processing 
facility.''
     Addressing oversight issues associated with bypass 
configurations, complex facilities with multiple processing units, and 
gas storage systems.
     Identifying the upstream and downstream demarcation points 
between pipeline transportation facilities that will be subject to 
regulatory oversight activities under PHMSA's pipeline safety 
regulations in 49 CFR parts 190 through 199, and processing facilities 
that will be subject to regulatory oversight activities by OSHA under 
its PSM requirements in 29 CFR 1910.119.
    Historically, PHMSA and OSHA have coordinated efforts to ensure 
that there are no gaps in oversight over any

[[Page 70126]]

individual facility and this cooperation will continue after this 
guidance is finalized.
    The proposed definitions contained within these FAQs are limited in 
use for applying these FAQs for the purpose of delineation between 
PHMSA and OSHA exercise of their respective regulatory oversight 
authorities. The proposed FAQ definitions will not be codified in Parts 
190 through 199, and are not intended to be used for purposes other 
than to help the public interpret the application of PHMSA and OSHA's 
regulations to a pipeline facility.

Executive Order 13891 and DOT Guidance Procedures

    This draft guidance document has been reviewed and cleared by the 
PHMSA Office of Chief Counsel in accordance with the Department's 
guidance procedures in 49 CFR 5.25-5.51. It has been determined to be 
non-significant and, as defined in 49 CFR 5.37, not otherwise of 
importance to the Department's interest. This draft guidance document 
will be posted on PHMSA's website in accordance with 49 CFR 5.31 and 
Executive Order 13891.

Draft Midstream Processing Facilities FAQs

    This draft guidance document is intended to provide clarity to the 
public regarding existing pipeline safety standards. The contents of 
this document do not have the force and effect of law and are not meant 
to bind the public in any way, but pipeline operators must comply with 
the underlying safety standards.

Q 1: Definitions

Q 1-A: What is Processing?
    For the purposes of this guidance document, ``processing'' is 
defined as the treatment of products including, but not limited to 
dehydration, removal of contaminants by separation or filtration, 
blending with other products, and heating or cooling units that 
separate or purify products and remove condensates by distillation.
    These FAQs do not cover facilities used for the chemical conversion 
of crude oil into refined petroleum products (i.e. refining 
facilities).
Q 1-B: What is a Processing Facility?
    A ``processing facility'' comprises one or more individual units 
that perform a processing operation (see Q 1-A) and meets the criteria 
for applicability of the Occupational Safety and Health 
Administration(OSHA) process safety management regulations (29 CFR 
1910.119).
Q 2: How does one delineate the boundary between pipeline 
transportation and a processing facility?
    PHMSA policy indicates that, in deference to OSHA's exercise of its 
authority, it will not conduct inspection and enforcement activities 
(``regulatory oversight activities'') under 49 CFR part 192 and 195 for 
pipelines downstream of the first pressure control device entering a 
processing facility, and upstream of the last pressure control device 
leaving that processing facility, except as described in provisions of 
FAQ 4.
Q 3: How does PHMSA's policy apply to regulatory oversight of a 
pipeline entering a processing facility that bypasses a pressure 
control device?
    A pipeline that predominantly (more than 50% of the time during the 
preceding calendar year) bypasses a pressure control device will be 
subject to PHMSA regulatory oversight activities under 49 CFR part 192 
or 195. Further, if a pipeline bypasses a pressure control device that 
is permanently no longer in service, the pipeline will be subject to 
PHMSA regulatory oversight activities under 49 CFR part 192 or 195.
Q 4: How does PHMSA's policy apply to regulatory oversight of piping 
that bypasses processing downstream of the first pressure control 
device?
    Piping that is downstream of the first pressure control device that 
is not predominately (more than 50% of the time during the previous 
calendar year) used to bypass processing will be subject to regulatory 
oversight activities by OSHA under its's process safety management 
regulations. Piping that is downstream of the first pressure control 
device that is predominantly (more than 50% of the time during the 
previous calendar year) used to bypass processing will be subject to 
PHMSA regulatory oversight activities under 49 CFR part 192 or 195.
Q 5: What if a given section of piping located on the grounds of a 
processing facility served by PHMSA-regulated pipelines connects two 
processing units or is otherwise used for a processing function?
    If the piping is located downstream of the first pressure control 
device entering the facility and upstream of the last pressure control 
device leaving the facility, it would be subject to regulatory 
oversight activities by OSHA under its process safety management 
regulations. PHMSA policy indicates that in deference to OSHA's 
exercise of its authority, this section of piping would not be subject 
to PHMSA regulatory oversight activities under 49 CFR part 192 or 195.
Q 6. How is underground storage and associated piping located on the 
grounds of a processing facility regulated?
    Piping associated with underground storage used for the ``purpose 
of managing processing facility inventory'' will be subject to 
regulatory oversight activities by OSHA under its process safety 
management regulations. Piping associated with storage caverns used for 
transportation will be subject to PHMSA regulatory oversight activities 
under 49 CFR part 192 or 195. Additionally, underground natural gas 
storage facilities, as defined in Sec.  192.3, must comply with the 
applicable reporting requirements in 49 CFR part 191 and underground 
natural gas storage safety requirements in Sec.  192.12.
Q 7. How are pipelines connecting storage or processing facilities 
regulated when traversing public or private lands (outside the grounds 
of storage or processing facilities)?
    Pipelines exiting a pressure control device of storage or 
processing facilities and traversing public or private lands outside 
the grounds of storage or processing facilities will be subject to 
PHMSA regulatory oversight activities under 49 CFR part 192 or 195.

    Issued in Washington, DC, on September 1, 2020, under authority 
delegated in 49 CFR 1.97.
Alan K. Mayberry,
Associate Administrator for Pipeline Safety.
[FR Doc. 2020-24011 Filed 11-3-20; 8:45 am]
BILLING CODE 4910-60-P


