[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Rules and Regulations]
[Pages 28054-28057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-12115]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 192
[Docket No. PHMSA-2025-0117; Amdt. No. 192-155]
RIN 2137-AF80
Pipeline Safety: Clarifying Recordkeeping Requirements for
Testing in MAOP Reconfirmation Regulation
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule; technical correction.
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[[Page 28055]]
SUMMARY: PHMSA is clarifying that certain recently adopted
recordkeeping requirements for pressure testing do not apply
retroactively when determining the applicability of the requirements
for reconfirming the maximum allowable operating pressure of certain
gas transmission lines.
DATES: Effective on October 9, 2025.
FOR FURTHER INFORMATION CONTACT: Sayler Palabrica, Transportation
Specialist, 1200 New Jersey Avenue SE, Washington, DC 20590, 202-744-
0825, [email protected].
SUPPLEMENTARY INFORMATION:
I. General Discussion
PHMSA is clarifying that certain recently adopted recordkeeping
requirements in 49 Code of Federal Regulations (CFR) 192.517(a) do not
apply retroactively to pressure testing predating Federal Pipeline
Safety Regulations (PSR, 49 CFR parts 190-199) when determining whether
an operator is required to reconfirm the maximum allowable operating
pressure (MAOP) of a gas transmission line under 49 CFR 192.624(a)(1)
(84 FR 52180 (Oct. 1, 2019), 85 FR 40132 (Jul. 6, 2020)). PHMSA wrongly
suggested the contrary in an October 2022 letter of interpretation that
PHMSA recently withdrew for further consideration (PI-22-0014 (Oct. 5,
2022). PHMSA is now confirming that its earlier interpretation provided
an erroneous reading of the applicable regulations in its letter of
interpretation. To provide owners and operators of gas transmission
lines with regulatory certainty, and to correct its earlier error,
PHMSA is clarifying the language in Sec. 192.624(a)(1) to address its
applicability to testing conducted prior to the adoption of the PSRs in
the early 1970s (35 FR 13248 (Aug. 19, 1970).
PHMSA's October 2022 letter of interpretation omitted consideration
of statutory and regulatory prohibitions on application of subsequently
adopted requirements to historical pressure testing. Both PHMSA's
statutory non-retroactivity provision at 49 U.S.C. 60104(b) and the
regulatory provision at Sec. 192.13(a) delineating the general
applicability of part 192 make clear that subsequently adopted initial
testing standards do not apply to gas pipeline facilities in existence
prior the adoption of the PSRs. The recordkeeping requirements in Sec.
192.517 are part of the initial testing standards for gas pipeline
facilities in subpart J of part 192. As such, those requirements cannot
be applied retroactively to pressure tests conducted prior to the
original adoption of the part 192 regulations without violating the
retroactivity prohibition in 49 U.S.C. 60104(b) and limitations in
Sec. 192.13(a).
Nothing in the text of Sec. 192.624(a)(1), which was introduced in
the 2019 Final Rule, overrides these longstanding and well-established
legal principles. Section 192.624(a)(1) simply states, in relevant
part, that MAOP reconfirmation is required if ``[r]ecords necessary to
establish the MAOP in accordance with Sec. 192.619(a)(2), including
records required by Sec. 192.517(a), are not traceable, verifiable,
and complete[.]'' Section 192.619(a)(2), the regulation referenced in
Sec. 192.624(a)(1), makes clear that operators can use tests conducted
prior to the original adoption of the part 192 regulations to establish
MAOP, see Table 1 to Paragraph (a)(2)(ii). As previously discussed, the
recordkeeping requirements in subpart J did not exist when operators
conducted those tests.
Retroactive application of the recordkeeping requirements in Sec.
192.517(a) to testing conducted prior to the adoption of part 192 was
not required to establish the MAOP of a gas transmission line under
Sec. 192.619(a)(2) prior to the October 2022 letter of interpretation,
nor does an operator need to have such records to satisfy the
``traceable, verifiable, and complete'' standard in Sec.
192.624(a)(1). Indeed, the contrary determination taken in the October
2022 letter violated the non-retroactivity provision in 49 U.S.C.
60104(b) and the general limitation on the applicability of part 192 in
Sec. 192.13(a), and would impose significant costs on the gas
transmission line industry by invalidating all pre-part 192 pressure
tests not satisfying subsequently adopted recordkeeping requirements in
49 CFR 192.517(a).
For these reasons, PHMSA is amending Sec. 192.624(a)(1) to clarify
that for pressure tests performed prior to the adoption of the PSR on
August 19, 1970, an operator is not expected to have each of the
specific information listed in Sec. 192.517(a) for those testing
records to be considered traceable, verifiable, and complete. PHMSA
intends to provide additional guidance in addressing the records needed
to satisfy the traceable, verifiable, and complete standard for
historical, pre-PSR pressure testing in the near future.
II. Regulatory Analysis and Notices
A. Legal Authority
This technical correction is published under the authority of the
Secretary of Transportation set forth in the Federal Pipeline Safety
Laws (49 U.S.C. 60101 et seq.) and delegated to the PHMSA Administrator
pursuant to 49 CFR 1.97. PHMSA has good cause under 5 U.S.C. 553(b)(B)
to issue this final rule without prior notice and comment because such
notice and comment are unnecessary. The amendment to Sec.
192.624(a)(1) merely clarifies within that provision the application of
the statutory retroactivity prohibition at 49 U.S.C. 60102(b) and the
general limitation on the applicability of part 192 at Sec. 192.13(a).
Making that clarification is consistent with PHMSA's enabling statute
and implementing regulations and will reduce compliance burdens for
affected entities (which are burdens generally passed on to the public
in the form of higher costs) in a manner that promotes the public
interest.
B. Executive Order 12866; Regulatory Planning and Review
Executive Order (E.O.) 12866 (``Regulatory Planning and Review'';
(58 FR 51735 (Oct. 4, 1993)), as implemented by DOT Order 2100.6B
(``Policies and Procedures for Rulemaking''), requires agencies to
regulate in the ``most cost-effective manner,'' to make a ``reasoned
determination that the benefits of the intended regulation justify its
costs,'' and to develop regulations that ``impose the least burden on
society.'' DOT Order 2100.6B specifies that regulations should
generally ``not be issued unless their benefits are expected to exceed
their costs.'' In arriving at those conclusions, E.O. 12866 requires
that agencies should consider ``both quantifiable measures . . . and
qualitative measures of costs and benefits that are difficult to
quantify'' and ``maximize net benefits . . . unless a statute requires
another regulatory approach.'' E.O. 12866 also requires that ``agencies
should assess all costs and benefits of available regulatory
alternatives, including the alternative of not regulating.'' DOT Order
2100.6B directs that PHMSA and other Operating Administrations must
generally choose the ``least costly regulatory alternative that
achieves the relevant objectives'' unless required by law or compelling
safety need.
E.O. 12866 and DOT Order 2100.6B also require that PHMSA submit
``significant regulatory actions'' to the Office of Information and
Regulatory Affairs (OIRA) within the Executive Office of the
President's Office of Management and Budget (OMB) for review. This
technical correction is a not significant regulatory action pursuant to
E.O. 12866; it also has not designated this rule as a ``major rule'' as
defined by the Congressional Review Act (5 U.S.C. 801 et seq.).
[[Page 28056]]
PHMSA has complied with the procedural and analytical requirements
in E.O. 12866 as implemented by DOT Order 2100.6B. In so doing, PHMSA
has determined that this technical correction will result in cost
savings by reducing regulatory burdens and regulatory uncertainty for
pipeline facility operators by clarifying the applicability of the MAOP
reconfirmation requirements in Sec. 192.624(a)(1) to pressure tests
conducted prior to the adoption of part 192. PHMSA expects those cost
savings will also result in reduced costs for the public to whom
pipeline operators generally transfer a portion of their compliance
costs.
C. Executive Orders 14192 and 14219
This final rule will be a deregulatory action pursuant to E.O.
14192 (``Unleashing Prosperity Through Deregulation''; 90 FR 9065 (Feb.
6, 2025)). PHMSA estimates that the total costs of the rule on the
regulated community will be less than zero. Nor does this rule
implicate any of the factors identified in section 2(a) of E.O. 14219
(``Ensuring Lawful Governance and Implementing the President's
`Department of Government Efficiency' Deregulatory Initiative'')
indicative that a regulation is ``unlawful . . . [or] that undermine[s]
the national interest'' (90 FR 10583 (Feb. 25, 2025)).
D. Energy-Related Executive Orders 13211, 14154, and 14156
The President has declared in E.O. 14156 (``Declaring a National
Energy Emergency''; 90 FR 8353 (Jan. 29, 2025)) a national emergency to
address America's inadequate energy development production,
transportation, refining, and generation capacity. Similarly, E.O.
14154 (``Unleashing American Energy''; 90 FR 8353 (Jan. 29, 2025))
asserts a Federal policy to unleash American energy by ensuing access
to abundant supplies of reliable, affordable energy from (inter alia)
the removal of ``undue burden[s]'' on the identification, development,
or use of domestic energy resources such as PHMSA-jurisdictional gasses
and hazardous liquids. PHMSA finds this technical correction is
consistent with each of E.O. 14156 and E.O. 14154. The technical
correction will clarify the applicability of the MAOP reconfirmation
requirements in Sec. 192.624(a)(1) to pressure tests conducted prior
to the adoption of part 192. PHMSA therefore expects the regulatory
amendments in this technical correction will in turn increase national
pipeline transportation capacity and improve pipeline operators'
ability to provide abundant, reliable, affordable natural gas in
response to residential, commercial, and industrial demand.
However, this technical correction is not a ``significant energy
action'' under E.O. 13211 (``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use''; 66 FR 28355
(May 22, 2001)), which requires Federal agencies to prepare a Statement
of Energy Effects for any ``significant energy action.'' Because this
technical correction is not a significant action under E.O. 12866, it
will not have a significant adverse effect on supply, distribution, or
energy use, as further discussed in the RIA; OIRA has therefore not
designated this technical correction as a significant energy action.
E. Executive Order 13132: Federalism
PHMSA analyzed this technical correction in accordance with the
principles and criteria contained in E.O. 13132 (``Federalism''; 64 FR
43255 (Aug. 10, 1999)) and the Presidential Memorandum (``Preemption'')
published in the Federal Register on May 22, 2009 (74 FR 24693 (May 22,
2009)). E.O. 13132 requires agencies to assure meaningful and timely
input by State and local officials in the development of regulatory
policies that may have ``substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
While the technical correction may operate to preempt some State
requirements, it would not impose any regulation that has substantial
direct effects on the States, the relationship between the National
Government and the States, or the distribution of power and
responsibilities among the various levels of government. Section
60104(c) of Federal Pipeline Safety Laws prohibits certain State safety
regulation of interstate pipelines. Under Federal Pipeline Safety Laws,
States that have submitted a current certification under section
60105(a) can augment Federal pipeline safety requirements for
intrastate pipelines regulated by PHMSA but may not approve safety
requirements less stringent than those required by Federal law. A State
may also regulate an intrastate pipeline facility that PHMSA does not
regulate. The preemptive effect of the regulatory amendments in this
technical correction is limited to the minimum level necessary to
achieve the objectives of the Federal Pipeline Safety Laws. Therefore,
the consultation and funding requirements of E.O. 13132 do not apply.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to conduct a Final Regulatory Flexibility Analysis
(FRFA) for a technical correction subject to notice-and-comment
rulemaking under the APA unless the agency head certifies that the
proposed rule in the rulemaking will not have a significant economic
impact on a substantial number of small entities. E.O. 13272 (``Proper
Consideration of Small Entities in Agency Rulemaking''; 64 FR 53461
(Aug. 16, 2002)) obliges agencies to establish procedures promoting
compliance with the Regulatory Flexibility Act. DOT posts its
implementing guidance on a dedicated web page. This technical
correction was developed in accordance with E.O. 13272 and DOT
implementing guidance to ensure compliance with the Regulatory
Flexibility Act and that the potential impacts of the rulemaking on
small entities has been properly considered. PHMSA expects that this
final rule will relieve a regulatory burden and therefore certifies the
technical correction will not have a significant impact on a
substantial number of small entities.
G. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of Federal regulatory actions
on State, local, and Tribal governments, and the private sector. For
any proposed or final rule that includes a Federal mandate that may
result in the expenditure by state, local, and Tribal governments, in
the aggregate of $100 million or more (in 1996 dollars) in any given
year, the agency must prepare, amongst other things, a written
statement that qualitatively and quantitatively assesses the costs and
benefits of the Federal mandate.
This technical correction does not impose unfunded mandates under
UMRA because it does not result in costs of $100 million or more (in
1996 dollars) per year for either State, local, or Tribal governments,
or to the private sector.
H. National Environmental Policy Act
The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et
seq.) requires that Federal agencies assess and consider the impact of
major Federal actions on the human and natural environment.
PHMSA analyzed this technical correction in accordance with NEPA
[[Page 28057]]
and issues this Finding of No Significant Impact (FONSI), as it has
determined that the rulemaking--which corrects an erroneous
interpretation of its regulations--will not adversely affect safety and
therefore will not significantly affect the quality of the human and
natural environment.
I. Executive Order 13175
PHMSA analyzed this technical correction according to the
principles and criteria in E.O. 13175 (``Consultation and Coordination
with Indian Tribal Governments''; 65 FR 67249 (Nov. 9, 2000)) and DOT
Order 5301.1A (``Department of Transportation Tribal Consultation
Polices and Procedures''). E.O. 13175 requires agencies to assure
meaningful and timely input from Tribal government representatives in
the development of rules that significantly or uniquely affect Tribal
communities by imposing ``substantial direct compliance costs'' or
``substantial direct effects'' on such communities or the relationship
or distribution of power between the Federal government and Tribes.
PHMSA assessed the impact of the technical correction and
determined that it will not significantly or uniquely affect Tribal
communities or Indian Tribal governments. The rulemaking's regulatory
amendments have a broad, national scope; therefore, this technical
correction will not significantly or uniquely affect Tribal
communities, much less impose substantial compliance costs on Native
American Tribal governments or mandate Tribal action. For these
reasons, PHMSA has concluded that the funding and consultation
requirements of E.O. 13175 and DOT Order 5301.1A do not apply.
J. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR 1320.8(d) requires that PHMSA provide
interested members of the public and affected agencies with an
opportunity to comment on information collection and recordkeeping
requests. This rulemaking will not create, amend, or rescind any
existing information collections.
K. Executive Order 13609 and International Trade Analysis
E.O. 13609 (``Promoting International Regulatory Cooperation''; 77
FR 26413 (May 4, 2012) requires agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA engages with international standards setting bodies to
protect the safety of the American public. PHMSA has assessed the
effects of the technical correction and has determined that its
regulatory amendments will not cause unnecessary obstacles to foreign
trade.
L. Cybersecurity and Executive Order 14028
E.O. 14028 (``Improving the Nation's Cybersecurity''; 86 FR 26633
(May 17, 2021)) directed the Federal government to improve its efforts
to identify, deter, and respond to ``persistent and increasingly
sophisticated malicious cyber campaigns.'' PHMSA has considered the
effects of the technical correction and has determined that its
regulatory amendments will not materially affect the cybersecurity risk
profile for pipeline facilities.
List of Subjects in 49 CFR Part 192
Natural gas, Pipeline safety.
In consideration of the foregoing, PHMSA amends 49 CFR part 192 as
follows:
PART 192--TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE:
MINIMUM FEDERAL SAFETY STANDARDS
0
1. The authority citation for 49 CFR part 192 continues to read as
follows
Authority: 30 U.S.C. 185(w)(3), 49 U.S.C. 5103, 60101 et seq.,
and 49 CFR 1.97.
0
2. Revise the introductory text of Sec. 192.624(a)(1) to read as
follows:
Sec. 192.624 Maximum allowable operating pressure reconfirmation:
Onshore steel transmission pipelines.
(a) * * *
(1) Records necessary to establish the MAOP in accordance with
Sec. 192.619(a)(2), including records required by Sec. 192.517(a) for
testing conducted pursuant to subpart J of this part, are not
traceable, verifiable, and complete and the pipeline is located in one
of the following locations:
* * * * *
Issued in Washington, DC, on June 26, 2025, under the authority
delegated in 49 CFR 1.97.
Benjamin D. Kochman,
Acting Administrator.
[FR Doc. 2025-12115 Filed 6-27-25; 4:15 pm]
BILLING CODE 4910-60-P