[Federal Register Volume 63, Number 50 (Monday, March 16, 1998)]
[Rules and Regulations]
[Pages 12659-12660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6629]



Research and Special Programs Administration

49 CFR Parts 191, 192, and 195

[Docket No. RSPA 97-2096; Amdt. 191-12; 192-81; 195-59]
RIN 2137-AC99

Pipeline Safety: Regulations Implementing Memorandum of 
Understanding With the Department of the Interior

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Confirmation of effective date of direct final rule.


SUMMARY: This document confirms the effective date of the direct final 
rule that excluded from DOT safety regulations producer-operated gas 
and hazardous liquid pipelines located on the Outer Continental Shelf 
(OCS) upstream from where operating responsibility transfers to a 
transporting operator. Also, in response to comments from interested 
persons, RSPA has clarified the applicability of the direct final rule.

DATES: The effective date of the direct final rule published November 
19, 1997, at 62 FR 61692 is confirmed to be March 19, 1998.

FOR FURTHER INFORMATION CONTACT: L.E. Herrick at (202) 366-5523, or at 
[email protected].

SUPPLEMENTARY INFORMATION: With the signing on December 10, 1996, of a 
memorandum of understanding (MOU), the Department of the Interior (DOI) 
and DOT agreed to a new division of their respective safety regulatory 
responsibilities over offshore pipelines on the OCS (62 FR 7037; 
February 14, 1997). Under the MOU, DOT will establish and enforce 
design, construction, operation, and maintenance regulations and 
investigate certain accidents for all pipelines located downstream of 
the point at which operating responsibility for the pipelines transfers 
from a producing operator to a transporting operator. DOI will regulate 
those producer-operated OCS pipelines located upstream of this point. 
The MOU also provides that individual operators of production and 
transportation facilities may define the boundaries of their respective 
    RSPA published a direct final rule amending the DOT pipeline safety 
regulations in 49 CFR parts 191, 192, and 195 consistent with the MOU 
(62 FR 61692; November 19, 1997). The direct final rule excluded from 
these DOT regulations OCS pipelines upstream from the point where 
operating responsibility transfers from a producing operator to a 
transporting operator. Also, operators were required to durably mark 
the specific points at which operating responsibility transfers or, if 
it is not practicable to durably mark a transfer point, to depict the 
transfer point on a schematic maintained near the transfer point.
    The procedures governing issuance of direct final rules are in 49 
CFR 190.339. These procedures provide for public notice and opportunity 
for comment subsequent to publication of a direct final rule. They also 
provide that unless an adverse comment or notice of intent to file an 
adverse comment is received within a specified comment period, the 
Administrator will issue a confirmation document advising the public 
that the direct final rule will either become effective on the date 
stated in the direct final rule or at least 30 days after the 
publication date of the confirmation. If an adverse comment or notice 
of intent

[[Page 12660]]

to file an adverse comment is received, RSPA will issue a timely notice 
in the Federal Register to confirm that fact and withdraw the direct 
final rule in whole or in part. According to the procedures, an adverse 
comment is one that explains why the rule would be inappropriate, 
including a challenge to the rule's underlying premise or approach, or 
would be ineffective or unacceptable without a change. Comments that 
are frivolous or insubstantial are not adverse. A comment recommending 
a rule change in addition to the rule is not an adverse comment, unless 
the commenter states why the rule would be ineffective without the 
additional change.
    As discussed below, we received six comments on the direct final 
rule. We do not consider any of the comments to be adverse comments 
under the direct final rule procedures. Consequently, we are publishing 
this document to confirm the effective date announced in the direct 
final rule.
    The Chevron Pipe Line Company and the American Petroleum Institute 
commended the action. However, the other four commenters, though 
supportive of the direct final rule in concept, expressed concerns 
about application of the new rules.
    The Southern Natural Gas Company and its affiliate, Sea Robin 
Pipeline Company (hereafter collectively ``SONAT''), noted that new 
rules intended to exclude certain producer-operated OCS pipelines from 
DOT regulations would conflict with existing rules that already exclude 
certain offshore pipelines. Because the direct final rule did not alter 
these existing rules, SONAT recommended changes to them to remove the 
conflict. For example, SONAT suggested we revise 49 CFR 192.1(b)(1), 
which excludes from DOT regulations offshore gas pipelines located 
upstream from certain production facilities, to apply only shoreward of 
the OCS.
    In its comments, SONAT did not describe the conflict it perceived, 
and we believe that none exists. The new OCS exclusionary rules are 
fully compatible with the existing offshore exclusionary rules. Each 
exclusion applies independently. So, if a producer-operated OCS 
pipeline is excluded from DOT regulation by a new OCS exclusionary 
rule, that exclusion is not negated if the pipeline is not also 
excluded by an existing offshore exclusionary rule. Further, the 
existing offshore exclusionary rules are needed to maintain the 
jurisdictional limits of DOT regulations over those producer-operated 
offshore pipelines not covered by the MOU and the direct final rule.
    In addition, SONAT suggested we revise the new OCS exclusionary 
rules, each of which was inserted in a list of other exclusions, to be 
``grammatically harmonious'' with the list. SONAT recommended word 
changes to make the new entries responsive to the introductory clause 
of the list. Although we appreciate the need for these suggested 
changes, they are editorial in nature and not essential to make the 
direct final rule effective or substantively valid. We will make the 
necessary editorial changes in a future rulemaking action.
    Finally, SONAT pointed out that the new rules on identifying 
transfer points did not provide a compliance deadline for installing 
durable markers. The preamble of the direct final rule mentioned that 
operators would have 60 days after the rules become final to durably 
mark transfer points. SONAT suggested we revise the rules so the 
deadline for marking transfer points not identifiable by durable 
marking--September 15, 1998--applies to marking all identified transfer 
points. This single deadline, SONAT said, would eliminate confusion, 
simplify the rules, and provide enough time for consultation and proper 
marking. We agree that the rules text is somewhat at variance with the 
preamble, but not in a way that increases the burden on operators. In 
the absence of a specific deadline for installing durable markers, we 
construe the new rules on identifying transfer points to require that 
all identified points be marked, either durably or schematically, by 
September 15, 1998.
    The Offshore Operators Committee, representing 87 companies, and 
the Chevron U.S.A. Production Company commented on a situation not 
covered by the MOU or the direct final rule: namely, producer-operated 
pipelines that run from the OCS to state territory with no transfer of 
operating responsibility. There is no question the state portion of 
these producer-operated pipelines comes under DOT regulations. But 
these commenters thought the direct final rule was unclear whether DOT 
or DOI regulations cover the OCS portion. The commenters asked that we 
revise the direct final rule to clarify that DOT regulations cover the 
OCS portion of the producer-operated pipelines so that DOT regulations 
apply to the entire pipeline.
    The direct final rule applies only to OCS pipelines on which there 
is a transfer of operating responsibility from a producing operator to 
a transporting operator. So producer-operated OCS pipelines regulated 
by DOT on which there is no transfer of operating responsibility will 
remain under DOT regulations and may also be subject to DOI 
regulations. But DOI has indicated it is modifying its MOU 
implementation rule to address the potential dual regulation of 
pipelines extending downstream (shoreward) of production facilities on 
the OCS. Also, the commitment of DOT and DOI to develop more compatible 
regulations should serve to mitigate regulatory problems that arise 
when OCS pipelines cross the jurisdictional boundary between the two 
agencies. Therefore, although the commenters' suggestions are beyond 
the scope of the direct final rule and are not necessary to make the 
rule effectual, in view of the cooperative efforts of the two agencies, 
we believe the difficulties the commenters foresaw will be minimal.
    Only the Administrator of RSPA has been delegated authority to 
issue final rules on pipeline safety. The direct final rule on OCS 
pipelines was issued by the Associate Administrator for Pipeline 
Safety. My signature below affirms that I subscribe to that action and 
to the direct final rule.

    Issued in Washington, D.C. on March 10, 1998.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 98-6629 Filed 3-13-98; 8:45 am]