[Federal Register Volume 88, Number 168 (Thursday, August 31, 2023)]
[Proposed Rules]
[Pages 60166-60167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18842]



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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Part 831

[Docket No.: NTSB-2023-0008]
RIN 3147-AA29


Authority of NTSB in Railroad, Pipeline, and Hazardous Materials 
Investigations

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The National Transportation Safety Board (NTSB) is publishing 
this advance notice of proposed rulemaking (ANPRM) to seek public 
feedback on whether it should define the terms ``significant injury to 
the environment'' and ``substantial property damage'' as they relate to 
the agency's investigative authority involving pipeline accidents. 
Neither the agency's statute nor the regulation currently defines these 
terms; thus, the NTSB seeks comments on whether defining them would 
better clarify the scope of regulatory coverage for its pipeline 
investigations. The issues raised in the comments submitted in response 
to this ANPRM will inform whether and how the NTSB will define these 
terms in its regulation.

DATES: Send comments on or before October 30, 2023.

ADDRESSES: You may send comments, identified by Docket Number (No.) 
NTSB-2023-0008, by any of the following methods:
     Federal e-Rulemaking Portal: https://www.regulations.gov.
     Email: [email protected].
     Fax: 202-314-6090.
     Mail/Hand Delivery/Courier: NTSB, Office of General 
Counsel, 490 L'Enfant Plaza East SW, Washington, DC 20594.
    Instructions: All submissions in response to this ANPRM must 
include Docket No. NTSB-2023-0008. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket, go to https://www.regulations.gov 
and search Docket No. NTSB-2023-0008.

FOR FURTHER INFORMATION CONTACT: William Thomas (Tom) McMurry, Jr., 
General Counsel, (202) 314-6080, [email protected].

SUPPLEMENTARY INFORMATION: In accordance with the Independent Safety 
Board Act of 1974, as amended, the NTSB is required to ``investigate or 
have investigated (in detail the Board prescribes) and establish the 
facts, circumstances, and cause or probable cause of a pipeline 
accident in which there is a fatality, substantial property damage, or 
significant injury to the environment.'' 49 U.S.C. 1131(a)(1)(D). The 
NTSB's regulations found at 49 CFR 831.40(a)(2) further explain that 
the NTSB has the authority to investigate ``pipeline accidents, 
explosions, incidents, and ruptures in which there is a fatality, 
significant injury to the environment, or substantial property 
damage.''
    Notably, the agency's regulation has neither a definition nor 
threshold for the terms ``significant injury to the environment'' or 
``substantial property damage'' as used in Sec.  831.40(a)(2). The NTSB 
believes that defining these terms will clarify the types of pipeline 
accidents that the NTSB will investigate. Thus, the NTSB is soliciting 
comments on the promulgation of the regulatory definitions of 
``significant injury to the environment'' and ``substantial property 
damage'' particular to pipeline accidents.
    The NTSB recognizes that pipeline regulations are more complicated 
and extensive than what can be realistically covered in this ANPRM as 
there are various Federal regulations addressing hazardous liquid and 
natural gas pipelines. Federal agencies with such regulations include 
the United States Coast Guard (USCG), the Department of Interior (DOI), 
and the Pipeline and Hazardous Materials Safety Administration (PHMSA) 
(an operating administration within the U.S. Department of 
Transportation (DOT)).
    For example, there are also hazardous liquid dock lines that are 
regulated by USCG under 33 CFR part 154 (Facilities Transferring Oil or 
Hazardous Material in Bulk). Moreover, offshore hazardous liquid and 
natural gas lines are regulated by DOI under 30 CFR part 250 (Oil and 
Gas and Sulphur Operations in the Outer Continental Shelf). 
Additionally, 49 CFR parts 191 (Transportation of Natural and Other Gas 
by Pipeline: Annual Incident, and Other Reporting), 192 (Transportation 
of Natural and Other Gas by Pipeline: Minimum Federal Safety 
Standards), 193 (Liquefied Natural Gas Facilities: Federal Safety 
Standards), 194 (Response Plans for Onshore Oil Pipelines), and 195 
(Transportation of Hazardous Liquids by Pipeline) are PHMSA regulations 
pertaining to pipeline safety.
    In addition to the aforementioned Federal regulations, there are 
individual state laws regarding intrastate pipelines that the NTSB also 
has the authority to investigate.
    For purposes of this rulemaking, the NTSB finds it appropriate to 
align its rule with those promulgated by PHMSA, which is ``responsible 
for regulating and ensuring the safe and secure movement of hazardous 
materials to industry and consumers by all modes of transportation, 
including pipelines.'' \1\ Accordingly, the NTSB reviewed PHMSA's 
regulation to better understand how that agency defines both 
substantial property damage and significant harm to the environment.
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    \1\ https://www.phmsa.dot.gov/regulations.
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    While there are various PHMSA regulations as noted above, there are 
two of particular interest to the NTSB. As will be discussed further 
below, for substantial property damage, the NTSB is considering 
adopting the reporting accident requirements provided in 49 CFR 191.9 
(Distribution system: Incident report) for natural gas and 49 CFR 
195.50 (Reporting Accidents) for hazardous liquids. For significant 
injury to the environment, the NTSB is considering adopting the 
standard contained in 49 CFR 194.103 (Significant and Substantial Harm: 
Operator's Statement).

I. Substantial Property Damage

    The NTSB is considering adopting the standards set forth in 49 CFR 
191.9 (Distribution system: Incident report), and 49 CFR 191.15 
(Transmission systems; gathering systems; liquefied natural gas 
facilities; and underground natural gas storage facilities: Incident 
report). The NTSB is also considering reporting pipeline accidents 
found in 40 CFR 195.50 (Reporting accidents [involving hazardous liquid 
pipelines]. These regulations require an incident/accident report for 
each failure in a pipeline system when there is a release of natural 
gas, hazardous liquid, or carbon dioxide. Section 195.50(d) specifies 
that an accident report is required ``for each failure in a pipeline 
system . . . in which there is a release of the hazardous liquid . . 
.'' resulting in ``[e]stimated property damage, including cost of 
clean-up and recovery, value of lost product, and damage to the 
property of the operator or others, or both, exceeding'' a specified 
amount.
    If the NTSB uses PHMSA's monetary threshold above or any other 
monetary threshold, the NTSB is further considering whether to have its 
reporting threshold indexed to inflation, which PHMSA does not 
calculate for hazardous liquids in 49 CFR 195.50(e). By contrast, for 
natural gas, PHMSA uses a property damage reporting threshold formula 
that is indexed to inflation in accordance with a formula

[[Page 60167]]

detailed appendix A to part 191 (Procedure for Determining Reporting 
Threshold).

II. Significant Harm to the Environment

    As noted above, the NTSB is considering the standard contained in 
Sec.  194.103 (Significant and Substantial Harm: Operator's Statement) 
to define ``significant injury to the environment.'' Section 194.103(a) 
explains when a line section ``can be expected to cause `significant 
and substantial harm to the environment' in the event of a discharge of 
oil into or on the navigable waters or adjoining shorelines.''
    Specifically, that regulation further provides that a line section 
may result in significant and substantial harm to the environment 
involving an oil discharge if the pipeline is greater than 6\5/8\ 
inches in outside nominal diameter, greater than 10 miles in length, 
and the line section meets any of the following: has experienced within 
the previous five years either a release greater than 1,000 barrels, or 
two or more reportable releases; containing an electric resistance 
welded pipe, which operates at a maximum pressure that corresponds to a 
stress level greater than 50 percent of the specified minimum yield 
strength of the pipe; is located within a 5-mile radius of potentially 
affected public drinking water intakes and can reasonably be expected 
to reach such intakes; or located within a 1-mile radius of 
potentially-affected environmentally sensitive areas, and could 
reasonably be expected to reach such areas. See 49 CFR 194.103(c).
    Using PHMSA's regulation as a model, the NTSB proposes the 
following definition for ``significant injury to the environment'': ``a 
discharge of 1,000 barrels or more of crude oil, refined petroleum 
product or anhydrous ammonia; into or on the navigable waters or 
adjoining shorelines or unusually sensitive areas.'' The NTSB notes 
that unusually sensitive areas are defined in PHMSA's 49 CFR 195.6 and 
includes environmentally sensitive areas and drinking water sources.

III. Public Comment

    To assist the NTSB in defining ``substantial property damage'' and 
``significant injury to the environment'' as those terms relate to 
pipeline accidents, the public is asked to address any or all of the 
following questions:
    1. Should the NTSB define ``substantial property damage''?
    2. How should the NTSB define ``substantial property damage''?
    3. As noted above, PHMSA has accident report thresholds for 
property damage that are indexed to inflation. Should the NTSB's 
property damage value be consistent with PHMSA's reporting threshold?
    4. How should the NTSB calculate the threshold value of 
``substantial property damage''?
    5. Should ``substantial property damage'' be based on total 
property damage, pipeline property damage, or non-pipeline property 
damage?
    6. Should the dollar amount established be indexed for inflation?
    7. Should ``substantial property damage'' consider factors other 
than monetary value?
    8. Should the same definition apply to both municipality owned 
pipelines and publicly-traded company pipelines?
    9. Should the NTSB define ``significant injury to the 
environment''?
    10. Is the NTSB's proposed definition for ``significant injury to 
the environment'' sufficient?
    11. How should the NTSB define ``significant injury to the 
environment''?
    12. Should the NTSB's definition of ``significant injury to the 
environment'' be consistent with the PHMSA's definition of 
``significant and substantial harm to the environment'' under 49 CFR 
194.103(c)?

List of Subjects in 49 CFR Part 831

    Aircraft accidents, Aircraft incidents, Aviation safety, Hazardous 
materials transportation, Highway safety, Investigations, Marine 
safety, Pipeline safety, Railroad safety.

William T. McMurry, Jr.,
General Counsel.
[FR Doc. 2023-18842 Filed 8-30-23; 8:45 am]
BILLING CODE 7533-01-P