[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Notices]
[Pages 5939-5941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02159]



[[Page 5939]]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2022-0004]


Pipeline Safety: Pipeline Safety Enhancement Programs

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

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice outlines how PHMSA will review and process 
Pipeline Safety Enhancement Program (PSEP) requests from pipeline 
owners and operators (PSEP applicants or applicants) to implement 
safety-enhancing testing programs for innovative technologies and 
operational practices on natural gas and hazardous liquid (HL) pipeline 
facilities. PHMSA will review each PSEP application and provide 
regulatory oversight of each approved PSEP, in accordance with the 
Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 
2020 (PIPES Act of 2020), to ensure the safety measures in each achieve 
a level of safety greater than the level of safety provided by the 
federal pipeline safety regulations (PSR).

FOR FURTHER INFORMATION CONTACT: 
    General: Ms. Kay McIver by telephone at 202-366-0113, or by email 
at [email protected].
    Technical: Mr. Steve Nanney by telephone at 713-272-2855, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: Section 104 of the PIPES Act of 2020 (Pub. 
L. 116-260 (Division R)) incorporated within the federal pipeline 
safety laws (49 U.S.C. 60101 et seq.) at section 60142, authorizes the 
establishment of PSEPs to evaluate innovative technologies and 
operational practices providing more robust protection of public safety 
and the environment than the existing PSR governing natural gas and HL 
pipeline facilities. PHMSA's review of PSEP applications, and its 
subsequent regulatory oversight of approved PSEPs, will build on 
PHMSA's longstanding, proven special permit processes to ensure robust 
stakeholder engagement and careful consideration of public safety 
concerns, potential environmental impacts, and state interests. PHMSA 
may subsequently undertake rulemakings to revise the PSR to accommodate 
promising technological and operational practices evaluated in PSEPs.
    Pipeline owners and operators (collectively, operators) may only 
apply for a PSEP through December 21, 2023. A PSEP shall not exceed a 
duration of three (3) years after the approval date. Only natural gas 
pipeline facilities regulated under 49 CFR part 192 and HL pipeline 
facilities regulated under 49 CFR part 195 are eligible for PSEPs. 
Congress has not granted PHMSA authority to renew PSEPs following that 
initial, three-year period. PHMSA will review PSEP applications and 
waive compliance with one or more of the provisions of the PSR while 
imposing compliance conditions that will be set out in an order 
approving the PSEP. PHMSA will, consistent with a statutory requirement 
in the PIPES Act of 2020, administer PSEPs to ensure they achieve a 
level of safety that is greater than the level of safety required by 
the PSR.

Application Process

    PSEP applications must follow the following requirements:
    (1) Applications must be submitted to the PHMSA Associate 
Administrator for Pipeline Safety in accordance with 49 CFR 
190.341(b)(2).
    (2) Applications must contain information in accordance with 49 CFR 
190.341(c), as elaborated and supplemented below in Items 3 through 11.
    (3) Applications must include a draft environmental assessment 
(DEA) in accordance with 49 CFR 190.341(c)(8).
    a. PHMSA will review each DEA to ensure it complies with the 
National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., as 
implemented by the Council on Environmental Quality regulations at 40 
CFR parts 1500-1508, U.S. Department of Transportation (DOT) Order No. 
5610.1C, and any other pertinent regulations or policies implementing 
NEPA, as applicable.
    b. PHMSA will analyze the PSEP application to determine whether the 
proposed action could have a significant impact on the human 
environment. PHMSA will analyze applications for potential risks to 
public safety and impacts to the environment that could result from 
PHMSA's decision to grant, grant with additional conditions, or deny 
the application.
    c. The DEA that the applicant provides must provide an analysis, 
consistent with principles set forth in DOT Order 5610.2C, of whether 
the proposed action will have disproportionately high and adverse human 
health or environmental effects on minority and low-income populations. 
Such analysis must include demographic information about the community 
within a half-mile vicinity on each side of the pipeline and past the 
pipeline endpoints of the relevant site(s). The applicant must use the 
U.S. Environmental Protection Agency Environmental Justice mapping and 
screening tool called EJSCREEN for its environmental justice analysis.
    d. As part of its review of an application, PHMSA will evaluate 
whether the application, if granted, will impact the likelihood or 
consequence of a pipeline failure as compared to the operation of the 
pipeline in full compliance with the PSR.
    e. PHMSA will provide, on request, an example environmental 
assessment, a template, and the environmental justice information 
requirements for applicants to use in generating and submitting a DEA.
    (4) Applications must include a map of the pipeline segment 
affected by the testing program at a 1:24,000 scale showing the county 
and state roads and highways. PHMSA may request maps with additional 
information based upon the testing program.
    (5) Applications must identify each of (i) the applicant's entire 
natural gas or HL pipeline system (as appropriate) including the 
mileage of pipeline facilities that are regulated under either 49 CFR 
part 192 (gas pipeline) or part 195 (HL pipeline); and (ii) the mileage 
of pipeline, and resulting percentage of the applicant's natural gas or 
HL pipeline system, that would be subject to the PSEP application.
    (6) Applications must not include pipeline segments that are 
located in, or which could affect,\1\ high consequence areas (HCAs) as 
defined in 49 CFR 192.903 for gas pipelines, or HCAs, including 
unusually sensitive areas (USAs), as defined in 49 CFR 195.450 and 
195.6, respectively, for HL pipelines. Pipeline facilities located in, 
or which could affect, HCAs and USAs are prohibited from PSEPs.
---------------------------------------------------------------------------

    \1\ PHMSA expects this eligibility limitation will ensure 
adequate protection for areas (specifically, HCAs) that the PSR 
recognize as being particularly vulnerable to the public safety and 
the environmental risks from natural gas or HL pipeline facilities 
in the vicinity.
---------------------------------------------------------------------------

    (7) Applications must identify safety measures for the PSEP that 
are designed to achieve a level of safety that is greater than the 
level of safety required by either 49 CFR part 192 or 49 CFR part 195, 
as applicable. Applications must also identify the specific provisions 
of the PSR for which a waiver is sought.
    (8) Applications must include the accident and incident record of 
the operator for the past 10 years.
    (9) Applications must describe each operator's safety management 
system (SMS) for all its 49 CFR part 192 and 49 CFR part 195 regulated 
pipelines and identify the SMS procedures that would

[[Page 5940]]

be applicable to the PSEP, to include any processes and procedures that 
provide a framework to disclose and manage risk, promote a learning 
environment, and continuously improve pipeline safety and integrity.
    (10) Applications must describe the safety technology or 
operational practice that the applicant is proposing, including any 
research and development program that the technology or operational 
practice underwent.

Public Notice

    Prior to PHMSA approving each PSEP application, PHMSA will publish 
a notice in the Federal Register and solicit comments on the PSEP 
application. PHMSA will assign a docket number in the Federal Docket 
Management System (FDMS) located at www.Regulations.gov for each PSEP 
application, the docket will include the Federal Register notice 
alerting the public of the application and will include all other 
pertinent documents for public review, including public comments.
    The comment period will be for a minimum of 90 days for each PSEP 
application. Comments received after the closing date will be evaluated 
if it is possible to do so without incurring additional expense or 
delay.

Limitations in Mileage and Prohibited Areas

    Per 49 U.S.C. 60142, all PSEPs approved by PHMSA may not, in the 
aggregate, apply to more than 5 percent of the total miles of either 
natural gas or HL pipelines in the United States that are regulated by 
PHMSA or a state authority under 49 U.S.C. 60105 or 60106. Furthermore, 
the aggregate mileage of each of an operator's natural gas or HL 
pipeline miles in PSEPs must be limited to the lesser of either (1) 
1,000 miles; or (2) 38 percent of the total miles of natural gas or HL 
pipelines in the operator's natural gas system or HL system that are 
regulated by PHMSA or a state authority under 49 U.S.C. 60105 or 60106. 
Finally, PSEPs will not apply to pipeline segments located within, or 
which could affect, HCAs as defined in 49 CFR 195.450 and 192.903, 
including USAs as defined in 49 CFR 195.6.

Safety Standards and PHMSA Review Considerations

    Each PSEP must incorporate innovative safety technologies and 
operational practices improving the reliability, accuracy, durability, 
or certainty of pipeline safety technologies, techniques, or methods. 
Safety measures for a proposed PSEP must be designed to achieve, and 
will be evaluated by PHMSA to ensure, a level of safety that is greater 
than the level of safety required by either 49 CFR part 192 for natural 
gas pipelines or 49 CFR part 195 for HL pipelines, as applicable. This 
standard exceeds the minimum level of safety that is required for 
issuance of a special permit, as described in 49 CFR 190.341(d)(2). 
PHMSA will only waive safety regulations in either 49 CFR part 192 or 
part 195 that would otherwise prevent the use of the safety technology 
or operational practice to be tested.
    In evaluating each PSEP application to ensure a level of safety 
greater than the level of safety required by either 49 CFR part 192 for 
natural gas pipelines or 49 CFR part 195 for HL pipelines, PHMSA will 
consider information in the PSEP application as well as the following:
    (1) The applicant's pipeline accident or incident record;
    (2) Whether the applicant has an SMS in place; and how the 
application proposes to eliminate or mitigate potential safety and 
environmental risks throughout the duration of the program;
    (3) Whether the proposed safety technology or operational practice 
has been adequately tested through a research and development program, 
collaborative research development organizations, or other 
institutions; and
    (4) Comments received in the docket for that PSEP application.

    PHMSA will publish its decision on whether to grant or deny the 
proposed PSEP application, in the docket for that application. PHMSA 
may, in granting a PSEP application, impose such conditions as PHMSA 
determines are appropriate. The effective date of a PSEP will not be 
made retroactive to a date preceding the publication date of PHMSA's 
decision.

Data and Findings

    Operators must submit to PHMSA detailed findings and an annual 
report with a summary of data collected as a result of participation in 
the PSEP. PHMSA will make the annual report for each ongoing testing 
program available to the public on PHMSA's website (at 
www.phmsa.dot.gov/pipeline/special-permits-state-waivers/special-permits-and-state-waivers-overview) and in the corresponding FDMS 
located at www.Regulations.gov.

Authority To Revoke Participation

    Pursuant to the PIPES Act of 2020, PHMSA shall immediately revoke a 
PSEP if:
    (1) The operator has an accident or incident involving death or 
personal injury necessitating in-patient hospitalization and the 
testing program is determined to be the cause of, or a contributing 
factor to, that accident or incident.
    (2) The operator fails to comply with the terms and conditions of 
the testing program.
    (3) PHMSA determines that continuation of the PSEP by the operator 
would be unsafe or would not be consistent with the public safety and 
environmental protection goals and objectives of 49 CFR part 192 or 
part 195, as applicable.

Because the statute mandates PHMSA ``immediately'' revoke a PSEP in the 
event of the above conditions, such revocations will not be subject to 
the ``show cause'' process for special permits set forth in 49 CFR 
190.341(j)(2). PHMSA may, in the event of a violation of a PSEP's terms 
and conditions, pursue enforcement action as contemplated by 49 CFR 
190.341(m).

States' Rights

    Following publication in the Federal Register of a notice 
announcing a PSEP, PHMSA will send that notice directly to each state 
in which a pipeline segment within the proposed PSEP is located. Those 
states may submit comments in the pertinent docket, or request 
exemption from a proposed PSEP by sending the request to the PHMSA 
Associate Administrator for Pipeline Safety for any proposed PSEP 
either prior to, or within 30 days after, PHMSA grants a PSEP. If a 
state has not submitted an exemption request in the above defined 
interval, the state shall not enforce any law (including regulations) 
that is inconsistent with the PSEP order in effect in the state.

PHMSA Reports to Congress

    PHMSA will submit a report to Congress at the conclusion of each 
PSEP and make those reports available to the public on PHMSA's website 
at: www.phmsa.dot.gov/pipeline/special-permits-state-waivers/special-permits-and-state-waivers-overview and in the FDMS located at 
www.Regulations.gov for each operator's application in the assigned 
docket number. The report will contain:
    (1) The findings and conclusions determined by PHMSA with respect 
to the testing program; and
    (2) Any recommendations by PHMSA with respect to the testing 
program, including any recommendations for amendments to laws 
(including the PSR) and the establishment of standards, that:
    a. Would enhance the safe operation of interstate gas or HL 
pipeline facilities; and

[[Page 5941]]

    b. Are technically, operationally, and economically feasible.

Regulatory Updates

    If a report to Congress discussed above indicates that it is 
practicable to establish technically, operationally, and economically 
feasible standards for the use of a safety-enhancing technology and any 
corresponding operational practices implemented by the testing program 
described in the report, PHMSA may commence a rulemaking action to 
promulgate regulations that:
    (1) Allow operators of interstate gas or HL pipeline facilities to 
use the relevant technology or practice to the extent practicable; and
    (2) Establish technically, operationally, and economically feasible 
standards for the capability and deployment of the technology or 
practice.

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 PSEP application information 
or data contains commercial or financial information that is 
customarily treated as private by the PSEP applicant, that the PSEP 
applicant actually treats as private, and that is relevant to the PSEP, 
it is important that the PSEP applicant clearly designates the 
submitted information or data as CBI. Pursuant to 49 CFR 190.343, a 
PSEP applicant may ask PHMSA to give confidential treatment to 
information the PSEP applicant gives 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. 
Submissions containing CBI should be sent to Kay McIver, DOT, PHMSA-
PHP-80, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any 
information or data PHMSA receives that is not specifically designated 
as CBI will be placed in the public docket for the pertinent PSEP 
application.

Paperwork Reduction Act Compliance

    PHMSA will be coordinating with the Office of Information and 
Regulatory Affairs within the Office of Management and Budget in 
compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

    Issued in Washington, DC, on January 28, 2022, under authority 
delegated in 49 CFR 1.97.
Alan K. Mayberry,
Associate Administrator for Pipeline Safety.
[FR Doc. 2022-02159 Filed 2-1-22; 8:45 am]
BILLING CODE 4910-60-P