[Federal Register Volume 69, Number 153 (Tuesday, August 10, 2004)]
[Rules and Regulations]
[Pages 48400-48407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17746]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 192 and 195

[Docket No. RSPA-97-3001; Amdt. Nos. 192-98, 195-82]
RIN 2137-AC54


Pipeline Safety: Periodic Underwater Inspections

AGENCY: Research and Special Programs Administration (RSPA), U.S. 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This rule amends the pipeline safety regulations to require 
operators of gas and hazardous liquid pipelines to prepare and follow 
procedures for periodic inspections of pipeline facilities located in 
the Gulf of Mexico and its inlets in waters less than 15 feet deep. 
These inspections will inform the operator if the pipeline is exposed 
or a hazard to navigation.

DATES: This rule is effective on September 9, 2004.

FOR FURTHER INFORMATION CONTACT: L.E. Herrick by phone at (202) 366-
5523, by

[[Page 48401]]

fax at (202) 366-4566, or by e-mail at [email protected], 
regarding the subject matter of this rule. General information about 
RSPA's Office of Pipeline Safety (OPS) programs may be obtained by 
accessing OPS's Internet page at http://ops.dot.gov.

SUPPLEMENTARY INFORMATION:

I. Background

RSPA/OPS Pipeline Safety Mission

    RSPA/OPS has responsibility for ensuring safety and environmental 
protection against risks posed by the Nation's approximately two 
million miles of gas and hazardous liquid pipelines. RSPA/OPS shares 
responsibility for inspecting and overseeing the Nation's pipelines 
with state pipeline safety offices.

The Need for Periodic Underwater Inspections

    On July 24, 1987, the fishing vessel Sea Chief struck and ruptured 
an 8-inch submerged natural gas liquids pipeline in the Gulf of Mexico. 
The escaping gas ignited and exploded, killing two crew members. A 
similar accident occurred on October 3, 1989, when the fishing vessel 
Northumberland struck and ruptured a 16-inch submerged gas pipeline, 
killing 11 crew members.
    The National Transportation Safety Board (NTSB) investigated the 
Northumberland accident and prepared a report, Fire on Board the F/V 
Northumberland and Rupture of a Natural Gas Transmission Pipeline in 
the Gulf of Mexico Near Sabine Pass, TX (October 3, 1989; NTIS Report 
Number PB90-916502), which found that the probable cause of the 
accident was the failure of the pipeline operator to maintain the 
pipeline at the burial depth to which it was initially installed.
    NTSB also found that the failure of RSPA/OPS to require pipeline 
operators to inspect and maintain submerged pipelines in a protected 
condition contributed to the accident. The NTSB subsequently issued 
Safety Recommendation P-90-29, which directed RSPA/OPS to ``develop and 
implement with the assistance of the Mineral Management Service (MMS), 
the United States Coast Guard (USCG), and the United States Army Corp 
of Engineers (USACE), effective methods and requirements to bury, 
protect, inspect the burial depth of and maintain all submerged 
pipelines in areas subject to damage by surface vessels and their 
operations.''

Legislative Amendments and Subsequent Actions

    In November 1990, Congress addressed hazards of underwater 
pipelines through amendments to the Hazardous Liquid Pipeline Safety 
Act of 1979 and the Natural Gas Pipeline Safety Act of 1968 (Pub. L. 
101-599). These amendments, in part, required the operators of offshore 
pipeline facilities in the Gulf of Mexico and its inlets to conduct an 
underwater depth-of-burial inspection of the pipeline facility and to 
report any exposed portion or any portion of the pipeline facility 
which posed a hazard to navigation to the Secretary of Transportation.
    The 1990 amendments also required the Secretary of Transportation 
to establish a mandatory, systematic, and, where appropriate, periodic 
inspection program of all offshore pipeline facilities and any other 
pipeline facility crossing under, over, or through navigable waters (as 
defined by the Secretary) if the Secretary decides that the location of 
the facility in those navigable waters could pose a hazard to 
navigation or public safety.
    In response to the NTSB recommendation and the Congressional 
mandates, RSPA/OPS formed a multi-agency task force on offshore 
pipelines to study the issue. The task force consisted of 
representatives from RSPA/OPS, USCG, MMS, the Department of Commerce, 
the National Oceanic and Atmospheric Administration/National Oceans 
Service, the USACE, the Louisiana Office of Conservation, and the Texas 
Railroad Commission.
    The task force reviewed information, views, and concerns provided 
by the government and the marine and pipeline industries. The 
assessment focused on the extent and adequacy of Federal regulations, 
the technology for determining pipeline location and cover, the 
availability of maps and charts depicting the location of pipelines, 
and possible government initiatives to enhance safety.
    In November 1990, the task force issued a report, Joint Task Force 
Report on Offshore Pipelines. The report concluded that exposed 
pipelines pose a potential risk to navigation safety, especially for 
mariners operating in shallow, near-shore waters. The task force also 
concluded that underwater inspections for depth-of-burial of those 
pipelines were not being performed despite a requirement to place 
pipelines below the sea floor in shallow water.
    To reduce the likelihood of further casualties, the report 
recommended that operators inspect these pipelines at regular intervals 
and re-bury exposed pipelines. A copy of the report is available in the 
docket for this rulemaking.
    On December 5, 1991, RSPA/OPS published regulations requiring an 
operator to conduct inspections of its underwater pipelines in the Gulf 
of Mexico and its inlets in waters less than 15 feet (4.6 meters) deep 
as measured from mean low water (56 FR 63764). The regulations required 
that these inspections be completed before November 16, 1992, and that 
the results be submitted to RSPA/OPS.
    The results of these inspections were reported to RSPA/OPS and have 
been used to inform this rulemaking. The regulations also established a 
course of action for the operator to follow if, as a result of the 
inspection or upon notification by any person, the operator discovers 
that a pipeline is exposed or a hazard to navigation.

National Research Council Report

    In 1994, to gain further information on the risks posed by 
underwater pipelines, RSPA/OPS, in conjunction with other Federal 
agencies, requested that the Marine Board of the National Research 
Council (NRC) conduct an interdisciplinary review and assessment of the 
many technical, regulatory, and jurisdictional issues that affect the 
safety of the marine pipelines in the United States' offshore waters. 
The Marine Board's interdisciplinary Committee on the Safety of Marine 
Pipelines reviewed the causes of past pipeline failures, the potential 
for future failures, and the means of preventing or mitigating these 
failures. The NRC issued a report, Improving the Safety of Marine 
Pipelines (1994). This report is available online at: http://books.nap.edu/books/0309050472/html/ html/. The report can also be ordered 
by mail at National Academies Press, 500 Fifth Street, NW., Lockbox 
285, Washington, DC 20055. A copy of this report is also available for 
review in the docket for this rulemaking.
    The NRC determined that the marine pipeline network does not 
present an extraordinary threat to human life. Pipeline accidents 
involving deaths or injuries are rare. The most widespread risks posed 
by pipelines are due to oil pollution--mainly from pipelines damaged by 
vessels and their gear. The NRC concluded that the risks generally 
could be managed with currently available technology and without major 
new regulations if enforcement of some current regulations is improved.
    In June 1997, a comprehensive study of the pipeline surveys in the 
Gulf of Mexico required by Sec. Sec.  192.612 and 195.413 was completed 
by the Texas

[[Page 48402]]

Transportation Institute (TTI). TTI also collected information on the 
available technology to conduct underwater depth-of-burial inspections 
and made recommendations for risk analysis, inspection intervals, and 
establishment of a definition of underwater natural bottom. A copy of 
the report, Analysis of Pipeline Burial Surveys in the Gulf of Mexico, 
is available in the docket for this rulemaking.
    In addition to this final rule, many of the issues identified in 
these reports, in particular risks of pipelines in navigable waters, 
have been addressed in four other final rules: December 2000--a rule 
that requires integrity management programs for large liquid pipelines 
(65 FR 75377); January 2002--a rule that requires integrity management 
programs for smaller liquid pipelines (67 FR 2136); August 2002--a rule 
that defines ``High Consequence Areas'' (HCA) for gas transmission 
pipelines (67 FR 50824); and January 2003--a rule that revises the HCA 
definition and requires integrity management programs for gas 
transmission pipelines in HCAs (69 FR 69778).

Notice of Proposed Rulemaking

    On December 12, 2003, RSPA/OPS issued a Notice of Proposed 
Rulemaking (NPRM) with request for comment (68 FR 69368). The comment 
period closed on March 10, 2004. Copies of the NPRM, the Draft Final 
Regulatory Evaluation, the Regulatory Flexibility Certification, and 
the comments are available in the docket for this rulemaking.
    RSPA/OPS proposed to require operators of hazardous liquid and 
natural gas pipelines to prepare and follow a procedure to conduct 
periodic underwater inspections of their pipelines offshore or crossing 
under commercially navigable waterways in waters less than 15 feet deep 
to ensure that the pipeline is not exposed or a hazard to navigation.
    The procedure would be used by the operator to assess the risk of 
an underwater pipeline becoming exposed or a hazard to navigation by 
taking into account the particular dynamics of the water and bottom, 
including the probability of flotation, scour, erosion, and the impacts 
of major storms. The operator would also establish a timetable for 
depth-of-burial inspection of shallow underwater pipelines based on the 
identified risks. The NPRM provided, as an example, the risk analysis 
procedure developed by TTI in their report.

II. Comment Discussion

    RSPA/OPS received 22 comments to the NPRM: one from a private 
individual, one from a marine pipeline consultant, one from a fisheries 
company, one from a State utilities board, four from trade 
organizations, and fourteen from pipeline companies.

A. General Comments

    1. Several commenters supported the proposed rule. One commenter 
stated that every 38 minutes a football sized parcel of Louisiana's 
wetlands turns to water and that regulations that clearly require 
procedures for periodic inspections of underwater pipelines is an 
important part of preventing pipeline damage. Another commenter noted 
that the chaos caused when pipelines are struck and destroyed not only 
hurts humans, but also causes catastrophe in the ocean by injuring 
fish, marine mammals, and the quality of the water.
    Another commenter stated that the NPRM was timely. The commenter 
identified nine incidents involving collisions of vessels and 
underwater pipelines and stated that the Coast Guard ``Notice to 
Mariners'' frequently identify locations of exposed pipelines that have 
been discovered and marked with warning buoys.
    However, many commenters raised questions and concerns about the 
proposed rule, in particular the inclusion of waters other than the 
Gulf of Mexico and its inlets. Several commenters did not believe the 
NPRM adequately justified expanding the pipeline survey requirements 
from the Gulf of Mexico to all inland waterways, noting that the NPRM 
did not provide evidence of accidents or incidents in shallow inland 
commercially navigable waters. Another commenter recommended that 
pipeline operating environments such as Long Beach harbor be excluded 
from this rule.
    Several commenters suggested that this issue merited more public 
discussion to provide an opportunity to develop a technical basis for 
including crossings of navigable waters in the rulemaking. Another 
commenter stated that the analysis omitted the impact on up to 1,400 
gas distribution operators.
Response
    RSPA/OPS believes that this rule is necessary. It is expected to 
result in increased protection from the Northumberland type incidents. 
However, RSPA/OPS has determined that the underwater periodic 
inspection provision will be limited to the Gulf of Mexico and its 
inlets. RSPA/OPS has not been presented with sufficient evidence that 
the rule should include other offshore and inland waters. RSPA/OPS 
believes that hazards to navigation in these areas is already being 
adequately managed by application of the regulations in part 192 and 
part 195 and the regulations of other agencies.
    Therefore, RSPA/OPS concludes that offshore waters outside the Gulf 
of Mexico and its inlets and inland waters have not been shown to pose 
a hazard to navigation or public safety that warrant periodic 
underwater inspections.
    2. Another operator stated that 90% of all damage is caused by 
anchors and occurs most often in shallow bays and inlets. The commenter 
suggests that more education is needed on the part of the marine vessel 
industry on how to avoid areas that pose a higher than normal risk. 
Another commenter stated that prevention of damage to pipeline 
facilities must be a cooperative effort between pipeline and vessel 
operators.
Response
    RSPA/OPS agrees and has supported efforts to develop international 
signage designed to warn vessel operators of pipeline hazards. In 
addition, RSPA/OPS works closely with other Federal and State agencies, 
such as USCG, MMS, USACE, and the Environmental Protection Agency (EPA) 
to address public safety concerns. However, RSPA/OPS' authority to 
implement rulemaking does not extend to the marine vessel industry.
    3. Another commenter believed that there is not sufficient data to 
prove that natural gas pipelines account for a significant amount of 
pollution. The commenter stated that some distinction needs to be made 
between damage to hazardous liquid pipelines and damage to gas 
pipelines.
Response
    RSPA/OPS disagrees. The 13 fatalities noted in the NPRM were the 
result of vessel interaction with natural gas pipelines. The study by 
the NRC recommended that natural gas and hazardous liquid pipelines be 
regulated identically under the periodic depth-of-burial inspection 
regulation because the higher risk to persons or property posed by 
natural gas pipeline facilities is balanced by the higher risk to the 
environment posed by hazardous liquid pipelines.
    4. Another commenter believed that a mandatory ``one-call'' system, 
as is presently required for onshore pipelines, needs to be developed 
for marine pipelines.
Response
    RSPA/OPS supports the concept of ``one-call'' and has forwarded 
this recommendation to the Common Ground Alliance (CGA), a nonprofit

[[Page 48403]]

organization dedicated to damage prevention efforts. The CGA addresses 
the many issues involved in protecting the nation's underground 
infrastructure from outside force damage.
    6. A commenter stated that the cost-benefit analysis provided with 
the NPRM does not account for the cost of remediation, which could be 
significant.
Response
    RSPA/OPS disagrees. The cost of remediation should not be included 
in the cost-benefit analysis for this rule because an operator is 
required to re-bury the pipeline under current regulations when it 
becomes aware that the pipeline is exposed or a hazard to navigation.

B. Performance-based v. Prescriptive Regulations

    RSPA/OPS requested comments on the respective merits of a 
performance-based or a prescriptive requirement. A performance-based 
requirement would require an operator to use risk-based analyses to 
determine the periodic underwater inspection intervals for each of 
their pipelines and to conduct the appropriate periodic underwater 
inspections. A prescriptive requirement would mandate a specific 
periodic underwater inspection interval.
    Nine commenters supported a performance-based approach. Another 
commenter stated that the acceptance of integrity management principles 
by RSPA/OPS is a practical method of ensuring pipeline safety and that 
performance-based regulations should be used whenever possible. Another 
commenter stated that the different soil and weather conditions require 
individual evaluations and determinations of adequate inspection 
intervals. Another commenter urged that predictive land loss models be 
used because some coastal areas require more frequent inspection than 
others and that performance-based language would allow operators the 
flexibility to address the myriad of situations encountered with 
underwater buried pipelines in a practical and effective manner.
    Three commenters supported some combination of approaches. A 
commenter suggested a trigger mechanism to require an inspection 
following a major storm and marine event. The commenters believed that 
regulatory language that is entirely performance-based, without 
benchmarks for compliance, could lead to inconsistency in 
implementation and enforcement.
    Two commenters supported a prescriptive approach for the inspection 
of liquid pipelines. Two commenters sought clarification that the 
recommendations in the Joint Task Force report, the NRC report, and the 
TTI report were discretionary guidelines for establishing risks and 
underwater periodic inspection intervals.
    One commenter recommended that inspection intervals longer than 
five years should be established on a case-by-case basis and be based 
on knowledge and experience gained during the ongoing inspections. 
Another commenter supported a mandated interval of five years with 
provision to extend this interval for sound technical reasons. Another 
commenter supported deferring to MMS directives as the trigger 
mechanism for more frequent inspections in the Gulf of Mexico and its 
inlets. Another commenter stated that the value of a prescriptive 
approach is that it would establish unambiguous requirements for 
inspection intervals and protocols.
Response
    RSPA/OPS agrees with most of the commenters regarding use of a 
performance-based approach. RSPS/OPS is implementing a performance-
based approach because it offers the best overall protection without 
imposing overly burdensome requirements that may not reflect the 
operating environment of the pipeline. RSPA/OPS confirms that adoption 
of the risk analysis systems provided in the NPRM and further 
articulated in the TTI report is discretionary. RSPA/OPS provided the 
examples in order to demonstrate the levels of complexity for the 
proposed performance-based requirement.

C. Hazard to Navigation

    Several commenters noted that the use of the term ``sea bed'' in 
the definition of ``hazard to navigation'' is inappropriate. They 
suggested that RSPA/OPS use the term that was defined in the proposed 
rule, ``underwater natural bottom,'' in place of the term ``sea bed.''
    Another commenter opposed defining a ``navigational hazard'' as a 
pipeline that is buried less than 24 inches below the seabed in water 
less than 15 feet deep. The commenter stated that it was not apparent 
from the NPRM that there exists credible scientific or empirical 
evidence to support 24 inches.
Response
    RSPA/OPS agrees and has incorporated the phrase ``underwater 
natural bottom'' (as determined by recognized and generally accepted 
practices) in place of the term ``seabed'' in the affected sections. 
RSPA/OPS also agrees that the threshold for reburial should remain at 
12 inches and is retaining the threshold of 12 inches in the definition 
of ``hazard to navigation.'' RSPA/OPS believes that 12 inches is an 
appropriate threshold because there has not been a Sea Chief or 
Northumberland type accident since the inspection and reburial 
regulation issued by RSPA/OPS in 1991.

D. Commercially Navigable Waterways

    Several commenters questioned the definition of commercially 
navigable waterways. Some commenters believed that using the Bureau of 
Transportation Statistics (BTS) database of commercially navigable 
waterways and non-commercially navigable waters helps provide 
consistency and certainty to the regulation, but others believed that 
the BTS database should not be the definitive source for defining 
commercially navigable waters.
Response
    RSPA/OPS agrees that the description of commercially navigable 
water in the NPRM is confusing. In addition, RSPA/OPS did not receive 
comments that pipelines crossing these waters currently pose a threat 
to navigation that is not already being addressed by the recent 
integrity management rules for high consequence areas and other 
regulations.
    RSPA/OPS is limiting the requirement to waters less than 15 feet 
deep in the Gulf of Mexico and its inlets. Therefore it is not 
necessary to define commercially navigable waterways in this rule.

E. Reporting Requirements

    Several commenters requested confirmation that the existing 
regulations requiring operators to notify the National Response Center 
upon becoming aware that their pipeline is exposed or a hazard to 
navigation remain in effect.
Response
    RSPA/OPS confirms that the existing regulations at Sec. Sec.  
192.612(b)(1) and 195.413(b)(1) remain in effect. These regulations 
require an operator to promptly, but not later than 24 hours after the 
discovery, notify the National Response Center upon becoming aware that 
their pipeline is exposed or a hazard to navigation.

F. Marking Exposed Pipelines Pending Their Reburial

    One commenter encouraged a specific reference to a USCG-approved 
marker for identifying pipeline hazards to navigation, particularly as 
it relates to

[[Page 48404]]

night time navigation. Another commenter supported the current 
regulations that require marking of exposed pipelines pending their 
reburial.
Response
    RSPA/OPS believes that the current regulations sufficiently address 
the marking of exposed underwater pipelines. They require an operator 
to promptly, but not later than 7 days after the discovery, mark the 
location of the pipeline in accordance with 33 CFR part 64 (the USCG 
regulations for identifying hazards to navigation).

G. Reburial Requirements

    Many commenters believed that the final regulation should allow for 
operators to use sound and proven engineering alternatives, such as 
articulated concrete mats, riprap stone, and pre-manufactured concrete 
blocks, that provide a level of protection that meets or exceeds the 
protection derived from reburial. One commenter suggested that the 
proposed rule should clarify that the reburial only applies if the 
pipeline is a hazard to navigation, as defined in Sec. Sec.  192.3 and 
195.2. Several commenters requested that Sec.  195.413(b)(3) be amended 
to allow operators the opportunity to petition for an extension of the 
6 month requirement for re-establishing protective cover of the exposed 
pipeline. Another commenter stated that the application of the existing 
reburial requirements to offshore pipelines is inconsistent. The 
initial construction requirements differentiate burial for offshore 
pipelines in less than 12 feet of water and those in at least 12 feet 
of water. For initial construction, pipelines in at least 12 feet of 
water are to be placed below the natural bottom. However, under Sec.  
192.612(b)(3), pipelines between 12 and 15 feet of water will require 
reburial to a greater depth, 36 inches for soil (18 inches for rock). 
These pipelines that were in compliance at initial construction located 
below the natural bottom will now have to be re-buried to 36 inches.
Response
    RSPA/OPS agrees with the commenters that concrete mats or other 
engineered alternatives to reburial can provide for a measure of safety 
equal to or greater than reburial, particularly in areas of high 
erosion or soft silty bottoms. RSPA/OPS has modified this final rule to 
allow for a performance-based alternative to reburial.

H. Abandoned Pipelines

    Three commenters expressed support for RSPA/OPS' clarification that 
these proposed requirements would not apply to abandoned pipelines. 
They agreed that abandoned pipelines do not pose a hazard to 
navigation, and therefore should not be included in this rule.
Response
    RSPA/OPS concurs with these commenters and has not included 
abandoned pipelines in this rule.

I. Exposed Pipeline

    Several commenters supported RSPA/OPS' efforts to clarify that 
there are two types of exposed pipelines--those underwater and those 
that are on land. The commenters suggested that the definition of 
``exposed underwater pipeline'' be clarified to ``an underwater 
pipeline where the top of the pipe protrudes above the underwater 
natural bottom.''
Response
    RSPA/OPS agrees and has amended the language in the final rule.

J. Gulf of Mexico and its Inlets

    Several operators supported RSPA/OPS' proposed amendment to the 
definition of ``Gulf of Mexico'' to clarify that the Gulf of Mexico 
includes waters beyond 15 feet deep. Another commenter sought 
clarification on the application of the revised rule. The commenter 
believed that the proposed language of Sec.  192.612(a) implied that 
the entire length of an offshore pipeline is subject to the inspection 
and reburial requirements, regardless of water depth. In contrast, 
another operator encouraged RSPA/OPS to retain the current definition 
of Gulf of Mexico and its inlets because revising the definition would 
cause confusion with current permits and agreements.
Response
    RSPA/OPS appreciates the support for modifying the definition of 
the Gulf of Mexico and its inlets to reflect that Gulf of Mexico 
includes waters beyond 15 feet deep. RSPA/OPS confirms that the 
proposed change was not intended to have a material affect on the scope 
of pipelines in the Gulf of Mexico affected by this rule. However, to 
avoid unintentional impacts on any existing contracts, RSPA/OPS is not 
changing the definition of Gulf of Mexico in this final rule. RSPA/OPS 
has clarified that certain requirements only apply to waters less than 
15 feet deep by amending the affected Sec. Sec.  192.612(a), 
195.246(b), 195.413, 195.248(a), and 195.248(b).

K. Underwater Natural Bottom

    One commenter believed that the use of the term ``surface'' in the 
new definition of ``underwater natural bottom'' was confusing. The 
commenter stated that surface is usually interpreted to be the top, 
especially when dealing with water bodies. Another commenter 
recommended that RSPA/OPS revise the term ``natural bottom'' as used in 
Sec.  192.327(e) to read ``underwater natural bottom.'' Several 
commenters questioned RSPA/OPS' proposal to use a 50 kHz fathometer 
signal to determine the underwater bottom, stating that a 50 kHz 
fathometer may not work properly in 15 feet or less of water. The 
commenters were generally supportive of the use of a frequency or some 
sound engineering method to determine the underwater natural bottom, 
but believed that the choice should be performance-based.
Response
    RSPA/OPS agrees. This final rule amends Sec. Sec.  192.327(e), 
192.612(b)(3), 195.246(b), 195.248(a), and 195.413(b)(3) to clarify 
that the natural bottom or seabed is the underwater natural bottom (as 
determined by recognized and generally accepted practices).
    In addition, during the initial Gulf of Mexico underwater 
inspections, many operators reported confusion in establishing the 
point of the underwater natural bottom. In order to resolve this 
concern, TTI conducted an analysis of pipeline burial in the Gulf of 
Mexico. The study recommended that the underwater natural bottom be 
defined as the surface which reflects a fathometer signal. The study 
further recommended the use of a 50 kHz signal as most appropriate for 
the very soft, silty bottoms in the Gulf of Mexico and for the water 
depths of 15 feet or less.
    However, RSPA/OPS agrees that allowing for the use of recognized 
and generally accepted practices would provide the operators with 
greater flexibility without compromising safety and has amended this 
final rule accordingly.

III. Advisory Committees

    The Technical Hazardous Liquid Pipeline Safety Standards Committee 
is a Federal advisory committee established under Section 204 of the 
Hazardous Liquid Pipeline Safety Act of 1974 (HLPSA) (49 App. U.S.C. 
2003). The Technical Pipeline Safety Standards Committee is a Federal 
advisory committee established under Section 4 of the Natural Gas 
Pipeline Safety Act of 1968 (NGPSA). These

[[Page 48405]]

committees advise DOT on the feasibility, reasonableness, and 
practicability of standards imposed under HLPSA and NGPSA.
    The committees members convened on June 30, 2004, for a telephonic 
public meeting to discuss the NPRM, the public comments, and RSPA/OPS' 
evaluation of the comments, and to vote on the proposal. The advisory 
committees voted unanimously in favor of the motion that the NPRM, 
``Pipeline Safety Underwater Periodic Inspections'' (68 FR 69368), 
which published on December 12, 2003, and the draft final regulatory 
evaluations are technically feasible, reasonable, and cost-effective if 
the following changes are made: (1) Provisions for alternative 
protective measures, other than burial, including engineered 
protection; (2) a process to ensure that RSPA/OPS is notified of delays 
in the issuance of environmental permits, and (3) inspection procedures 
to address environmental risks.
    The committees also recommended that RSPA/OPS conduct further 
studies to collect additional data on the risks of exposed pipelines 
and possible hazards to navigation in offshore waters other than the 
Gulf of Mexico and its inlets.
    The transcript of these advisory committee meetings is available in 
the docket for this rulemaking.
Response
    RSPA/OPS incorporated the advisory committee recommendations in the 
final rule to allow operators to employ engineered alternatives to 
burial that meet or exceed the level of protection provided by burial. 
In addition, RSPA/OPS has incorporated a provision in the final rule to 
require an operator to notify RSPA/OPS if it cannot obtain required 
state or Federal permits in time to comply with the regulation.
    RSPA/OPS has provided examples of several environmental risk 
assessment procedures which were developed in conjunction with this 
rule. These procedures are described in detail in the National Research 
Council Report Improving the Safety of Marine Pipelines (1994) and in 
the Texas Transportation Institute Report Analysis of Pipeline Burial 
Surveys in the Gulf of Mexico. These reports are available in the 
docket for this rulemaking.
    RSPA/OPS will consider issuing a notice to request further public 
comment on the risks of exposed pipelines and possible hazards to 
navigation in offshore waters other than the Gulf of Mexico and its 
inlets.

IV. Regulatory Analyses and Notices

A. Paperwork Reduction Act

    A copy of the Paperwork Reduction Analysis for this proposal has 
been put in the public docket for this rule. The following is a summary 
of the highlights of this analysis.
    Approximately 125 pipeline operators are potentially subject to 
this new requirement. It will take a pipeline operator approximately 
500 hours to develop and implement a program to determine the need for 
periodic inspection. The total industry time to develop this program is 
62,500 hours.
    Comments were invited on: (a) The need for the proposed collection 
of information for the proper performance of the functions of the 
agency, including whether the information will have practical utility; 
(b) the accuracy of the agency's estimate of the burden of the 
collection of information including the validity of the methodology and 
assumptions used; (c) ways to enhance the quality, utility and clarity 
of the information to be collected; and (d) ways to minimize the burden 
of the collection of information on those who are to respond, including 
the use of appropriate automated, electronic, mechanical, or other 
technological collection techniques.
    Several commenters expressed concern about the added costs to 
prepare and follow a procedure to identify pipelines that are at risk 
of being exposed underwater pipelines or hazards to navigation and to 
conduct appropriate periodic underwater inspections in areas other than 
the Gulf of Mexico and its inlets. Because the scope of the final rule 
is limited to the Gulf of Mexico and its inlets, the costs of applying 
this rule to other offshore water and inland waters do not need to be 
addressed.
    Some commenters questioned whether RSPA/OPS was proposing some 
change to the current requirements for reporting to the USCG's National 
Response Center. Under current regulations, if an operator discovers 
that a pipeline is exposed it must take actions that include reporting 
the location to the National Response Center. In this final rule, RSPA/
OPS is not changing this requirement.

B. Executive Order 12866 and DOT Policies and Procedures

    A final regulatory evaluation for this rule has been prepared and 
placed in the public docket. This rule is a response to Congressional 
requirements that pipelines posing a hazard to navigation or public 
safety be periodically inspected to notify the operator of the exposure 
or hazard. The Congressional requirements responded to two accidents in 
the late 1980s in which fishing vessels collided with underwater 
natural gas pipelines in the Gulf of Mexico, resulting in multiple 
fatalities.
    Approximately 125 companies operate underwater pipelines in the 
shallow waters of the Gulf of Mexico and its inlets. Under this rule, 
each of these companies will be required to prepare and follow a 
procedure to identify pipelines in waters less than 15 feet deep that 
are at risk of being an exposed underwater pipeline or a hazard to 
navigation and to conduct appropriate periodic underwater inspections.
    A survey conducted by RSPA/OPS in 1992 determined that less than 
two percent of the affected underwater pipeline were exposed or a 
hazard to navigation. RSPA/OPS believes that at most 10% of the 
affected pipelines may need to be reinspected periodically. RSPA/OPS 
estimates that the initial cost of this proposal is $6.25 million with 
annual reinspection costs of approximately $200,000 per year. More 
details of the costs and benefits of this rule can be found in the 
public docket.
    Several commenters questioned the need for extending inspection 
requirements outside of the Gulf of Mexico and its inlets. RSPA/OPS 
agrees with these comments and has limited the scope of the final rule 
to the Gulf of Mexico and its inlets.
    Most commenters agreed with RSPA/OPS' proposal that the rule should 
be performance-based rather than prescriptive. RSPA/OPS is allowing 
operators some flexibility in complying with this rule by adopting a 
performance-based approach. The varied risks faced by underwater 
pipelines require each operator to determine the hazards posed by each 
of its pipelines and to develop appropriate responses to the risks. 
This flexibility is expected to lead to lower costs of compliance.
    One commenter was concerned with the impacts on gas distribution 
operators who operate in inland navigable waterways. The final is 
limited to the Gulf of Mexico and its inlets and is not expected to 
have any measurable impact on gas distribution pipeline operators.
    Some commenters stated that RSPA/OPS underestimated the costs of 
this rule by not including remediation costs. However, an operator is 
currently required to take action if they discover that a pipeline is 
exposed. Therefore, remediation is not an additional cost imposed by 
this rule.

[[Page 48406]]

C. Regulatory Flexibility Act

    Several commenters were concerned that the inclusion of pipelines 
in navigable waterways in the proposed rule would add significant costs 
without added benefits. As discussed above, distribution pipeline 
operators had particular concerns. The great majority of small pipeline 
operators in the United States are distribution operators. By limiting 
this final rule to pipelines in the Gulf and its inlets RSPA/OPS has 
eliminated most, if not all, small operators from the impact of this 
regulation. Based on the facts available about the anticipated impact 
of this rulemaking, I certify, pursuant to Section 605 of the 
Regulatory Flexibility Act (5 U.S.C. 605), that this action will not 
have a significant economic impact on a substantial number of small 
entities.

D. Environmental Assessment

    A preliminary draft Environmental Assessment (EA) was prepared and 
is available in the docket. No comments on the EA were received from 
the public. The inspection and reburial of the pipelines should not 
have a significant impact on the environment. Previous inspections of 
underwater pipelines in the Gulf of Mexico found less than two percent 
of pipelines required reburial. RSPA/OPS anticipates that very few 
pipelines will require reburial as a result of this rule. Therefore, 
this rule will not have a significant impact on the human environment. 
A Final EA has been placed in the docket.

E. Executive Order 12612--Federalism

    RSPA/OPS analyzed this action in accordance with the principles and 
criteria contained in Executive Order 12612 (52 FR 41685).
    RSPA/OPS has determined that the action does not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, 
this rule does not have sufficient federalism implications to warrant 
preparation of a Federalism Assessment.

List of Subjects

49 CFR Part 192

    Agency procedures, Gas, Natural gas, Pipeline safety, Reports, 
Transportation.

49 CFR Part 195

    Agency procedures, Hazardous liquid, Oil, Petroleum, Pipeline 
safety, Reports, Transportation.


0
In consideration of the foregoing, RSPA/OPS amends parts 192 and 195 of 
title 49 of the Code of Federal Regulations as follows:

PART 192--TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: 
MINIMUM FEDERAL SAFETY STANDARDS

0
1. The authority citation for part 192 continues to read as follows:

    Authority: 5121, 60102, 60103, 60104, 60108, 60117, 60118, 
60124; and 49 CFR 1.53.


0
2. Amend Sec.  192.3 by removing the definition of Exposed pipeline and 
adding a definition for Exposed underwater pipeline and revising the 
definition of Hazard to navigation to read as follows:


Sec.  192.3  Definitions.

* * * * *
    Exposed underwater pipeline means an underwater pipeline where the 
top of the pipe protrudes above the underwater natural bottom (as 
determined by recognized and generally accepted practices) in waters 
less than 15 feet (4.6 meters) deep, as measured from mean low water.
* * * * *
    Hazard to navigation means, for the purposes of this part, a 
pipeline where the top of the pipe is less than 12 inches (305 
millimeters) below the underwater natural bottom (as determined by 
recognized and generally accepted practices) in waters less than 15 
feet (4.6 meters) deep, as measured from the mean low water.
* * * * *

0
3. Amend Sec.  192.327 by revising paragraph (e) to read as follows:


Sec.  192.327  Cover.

* * * * *
    (e) Except as provided in paragraph (c) of this section, all pipe 
installed in a navigable river, stream, or harbor must be installed 
with a minimum cover of 48 inches (1,219 millimeters) in soil or 24 
inches (610 millimeters) in consolidated rock between the top of the 
pipe and the underwater natural bottom (as determined by recognized and 
generally accepted practices).
* * * * *
0
4. Section 192.612 is revised to read as follows:


Sec.  192.612  Underwater inspection and reburial of pipelines in the 
Gulf of Mexico and its inlets.

    (a) Each operator shall prepare and follow a procedure to identify 
its pipelines in the Gulf of Mexico and its inlets in waters less than 
15 feet (4.6 meters) deep as measured from mean low water that are at 
risk of being an exposed underwater pipeline or a hazard to navigation. 
The procedures must be in effect August 10, 2005.
    (b) Each operator shall conduct appropriate periodic underwater 
inspections of its pipelines in the Gulf of Mexico and its inlets in 
waters less than 15 feet (4.6 meters) deep as measured from mean low 
water based on the identified risk.
    (c) If an operator discovers that its pipeline is an exposed 
underwater pipeline or poses a hazard to navigation, the operator 
shall--
    (1) Promptly, but not later than 24 hours after discovery, notify 
the National Response Center, telephone: 1-800-424-8802, of the 
location and, if available, the geographic coordinates of that 
pipeline.
    (2) Promptly, but not later than 7 days after discovery, mark the 
location of the pipeline in accordance with 33 CFR part 64 at the ends 
of the pipeline segment and at intervals of not over 500 yards (457 
meters) long, except that a pipeline segment less than 200 yards (183 
meters) long need only be marked at the center; and
    (3) Within 6 months after discovery, or not later than November 1 
of the following year if the 6 month period is later than November 1 of 
the year of discovery, bury the pipeline so that the top of the pipe is 
36 inches (914 millimeters) below the underwater natural bottom (as 
determined by recognized and generally accepted practices) for normal 
excavation or 18 inches (457 millimeters) for rock excavation.
    (i) An operator may employ engineered alternatives to burial that 
meet or exceed the level of protection provided by burial.
    (ii) If an operator cannot obtain required state or Federal permits 
in time to comply with this section, it must notify OPS; specify 
whether the required permit is State or Federal; and, justify the 
delay.

PART 195--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE

0
1. The authority citation for part 195 continues to read as follows:

    Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60118; 
and 49 CFR 1.53.


0
2. Amend Sec.  195.2 by removing the definition of Exposed pipeline and 
adding a definition for Exposed underwater pipeline and revising the 
definition of Hazard to navigation to read as follows:

[[Page 48407]]

Sec.  195.2  Definitions.

* * * * *
    Exposed underwater pipeline means an underwater pipeline where the 
top of the pipe protrudes above the underwater natural bottom (as 
determined by recognized and generally accepted practices) in waters 
less than 15 feet (4.6 meters) deep, as measured from mean low water.
* * * * *
    Hazard to navigation means, for the purposes of this part, a 
pipeline where the top of the pipe is less than 12 inches (305 
millimeters) below the underwater natural bottom (as determined by 
recognized and generally accepted practices) in waters less than 15 
feet (4.6 meters) deep, as measured from the mean low water.
* * * * *

0
3. Amend Sec.  195.246 by revising paragraph (b) to read as follows:


Sec.  195.246  Installation of pipe in a ditch.

* * * * *
    (b) Except for pipe in the Gulf of Mexico and its inlets in waters 
less than 15 feet deep, all offshore pipe in water at least 12 feet 
deep (3.7 meters) but not more than 200 feet deep (61 meters) deep as 
measured from the mean low water must be installed so that the top of 
the pipe is below the underwater natural bottom (as determined by 
recognized and generally accepted practices) unless the pipe is 
supported by stanchions held in place by anchors or heavy concrete 
coating or protected by an equivalent means.
* * * * *
0
4. Amend Sec.  195.248 by revising paragraphs (a) and (b) introductory 
text to read as follows:


Sec.  195.248  Cover over buried pipeline.

    (a) Unless specifically exempted in this subpart, all pipe must be 
buried so that it is below the level of cultivation. Except as provided 
in paragraph (b) of this section, the pipe must be installed so that 
the cover between the top of the pipe and the ground level, road bed, 
river bottom, or underwater natural bottom (as determined by recognized 
and generally accepted practices), as applicable, complies with the 
following table:

------------------------------------------------------------------------
                                            Cover inches (millimeters)
                                         -------------------------------
                Location                    For normal       For rock
                                            excavation    excavation \1\
------------------------------------------------------------------------
Industrial, commercial, and residential         36 (914)        30 (762)
 areas..................................
Crossing of inland bodies of water with        48 (1219)        18 (457)
 a width of at least 100 feet (30
 millimeters) from high water mark to
 high water mark........................
Drainage ditches at public roads and            36 (914)        36 (914)
 railroads..............................
Deepwater port safety zones.............       48 (1219)        24 (610)
Gulf of Mexico and its inlets in waters         36 (914)        18 (457)
 less than 15 feet (4.6 meters) deep as
 measured from mean low water...........
Other offshore areas under water less           36 (914)        18 (457)
 than 12 ft (3.7 meters) deep as
 measured from mean low water...........
Any other area..........................        30 (762)        18 (457)
------------------------------------------------------------------------
\1\ Rock excavation is any excavation that requires blasting or removal
  by equivalent means.

    (b) Except for the Gulf of Mexico and its inlets in waters less 
than 15 feet (4.6 meters) deep, less cover than the minimum required by 
paragraph (a) of this section and Sec.  195.210 may be used if--
* * * * *
0
5. Section 195.413 is revised to read as follows:


Sec.  195.413  Underwater inspection and reburial of pipelines in the 
Gulf of Mexico and its inlets.

    (a) Except for gathering lines of 4\1/2\ inches (114mm) nominal 
outside diameter or smaller, each operator shall prepare and follow a 
procedure to identify its pipelines in the Gulf of Mexico and its 
inlets in waters less than 15 feet (4.6 meters) deep as measured from 
mean low water that are at risk of being an exposed underwater pipeline 
or a hazard to navigation. The procedures must be in effect August 10, 
2005.
    (b) Each operator shall conduct appropriate periodic underwater 
inspections of its pipelines in the Gulf of Mexico and its inlets in 
waters less than 15 feet (4.6 meters) deep as measured from mean low 
water based on the identified risk.
    (c) If an operator discovers that its pipeline is an exposed 
underwater pipeline or poses a hazard to navigation, the operator 
shall--
    (1) Promptly, but not later than 24 hours after discovery, notify 
the National Response Center, telephone: 1-800-424-8802, of the 
location and, if available, the geographic coordinates of that 
pipeline.
    (2) Promptly, but not later than 7 days after discovery, mark the 
location of the pipeline in accordance with 33 CFR Part 64 at the ends 
of the pipeline segment and at intervals of not over 500 yards (457 
meters) long, except that a pipeline segment less than 200 yards (183 
meters) long need only be marked at the center; and
    (3) Within 6 months after discovery, or not later than November 1 
of the following year if the 6 month period is later than November 1 of 
the year of discovery, bury the pipeline so that the top of the pipe is 
36 inches (914 millimeters) below the underwater natural bottom (as 
determined by recognized and generally accepted practices) for normal 
excavation or 18 inches (457 millimeters) for rock excavation.
    (i) An operator may employ engineered alternatives to burial that 
meet or exceed the level of protection provided by burial.
    (ii) If an operator cannot obtain required state or Federal permits 
in time to comply with this section, it must notify OPS; specify 
whether the required permit is State or Federal; and, justify the 
delay.

    Issued in Washington, DC on July 29, 2004.
Samuel G. Bonasso,
Deputy Administrator.
[FR Doc. 04-17746 Filed 8-9-04; 8:45 am]
BILLING CODE 4910-60-P