Pipeline Safety: Safety of Gas Transmission Pipelines: Repair Criteria, Integrity Management Improvements, Cathodic Protection, Management of Change, and Other Related Amendments: Corrections To Conform to Judicial Review

<RULE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Pipeline and Hazardous Materials Safety Administration</SUBAGY> <CFR>49 CFR Part 192</CFR> <DEPDOC>[Docket No. PHMSA-2011-0023; Amdt. No. 192-138]</DEPDOC> <RIN>RIN 2137-AF39</RIN> <SUBJECT>Pipeline Safety: Safety of Gas Transmission Pipelines: Repair Criteria, Integrity Management Improvements, Cathodic Protection, Management of Change, and Other Related Amendments: Corrections To Conform to Judicial Review</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Correcting amendments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> These amendments conform part 192 of the Code of Federal Regulations (CFR) to the August 2024 order of the United States Court of Appeals for the District of Columbia Circuit by removing several vacated provisions. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective on January 15, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Robert Jagger, Senior Transportation Specialist, by email at <E T="03">robert.jagger@dot.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> On August 24, 2022, PHMSA published a final rule titled “Safety of Gas Transmission Pipelines: Repair Criteria, Integrity Management Improvements, Cathodic Protection, Management of Change, and Other Related Amendments” (2022 Gas Transmission Final Rule)  <SU>1</SU> <FTREF/> amending the federal pipeline safety regulations at 49 CFR part 192 to improve the safety of onshore gas transmission pipelines. The 2022 Gas Transmission Final Rule updated and expanded requirements pertaining to corrosion control, repair criteria and timelines for various pipeline integrity anomalies (including various manifestations of metal loss, cracking, and denting), and other integrity management improvements. <FTNT> <SU>1</SU>  87 FR 52224 (Aug. 24, 2022). </FTNT> The Interstate Natural Gas Association of America (INGAA) filed a petition for judicial review challenging several provisions of the 2022 Gas Transmission Final Rule. On August 16, 2024, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ordered the following provisions vacated:  <SU>2</SU> <FTREF/> <FTNT> <SU>2</SU>   <E T="03">INGAA</E> v. <E T="03">PHMSA,</E> No. 23-1173, 114 F.4th 744, 756 (D.C. Cir. Aug. 16, 2024). </FTNT> (1) Monitoring and mitigation of internal corrosive constituents at § 192.478; (2) The immediate repair criterion for cracks or crack-like anomalies with predicted failure pressures below 1.25 × maximum allowable operating pressure (MAOP) at §§ 192.714(d)(1)(v)(C) and 192.933(d)(1)(v)(C); and (3) High-frequency electric resistance welded seams as one of the seam types qualifying for the immediate repair criterion of preferential metal loss on certain seam types at §§ 192.714(d)(1)(iv) and 192.933(d)(1)(iv). <SU>3</SU> <FTREF/> <FTNT> <SU>3</SU>  Preferential metal loss on direct current, low-frequency electric resistance welded pipe, and electric flash welded pipe remain immediate repair conditions when an anomaly on pipe with these seam types meet the conditions under §§ 192.714(d)(1)(iv) and 192.933(d)(1)(iv). <E T="03">INGAA</E> v. <E T="03">PHMSA,</E> 114 F.4th at 756 (vacating the provisions “only as applied to seams formed by high-frequency electric resistance welding”). </FTNT> This notice removes those vacated provisions and makes conforming revisions to align the federal pipeline safety regulations to the result of judicial review. <SU>4</SU> <FTREF/> <FTNT> <SU>4</SU>  PHMSA also removes now obsolete cross-references to § 192.478 located in §§ 192.9 and 192.927, without making any other changes to those provisions. </FTNT> Additionally, the court's August 16, 2024, decision found the dent engineering critical assessment method at § 192.712(c) to be inadequately justified. However, the D.C. Circuit subsequently, in a December 10, 2024 order, granted an unopposed petition for rehearing by INGAA and remanded this provision to PHMSA without vacatur. Accordingly, the engineering critical assessment method for dents articulated at § 192.712(c) remains in the federal pipeline safety regulations, thereby allowing operators complying with the process to, where appropriate, monitor rather than repair certain dents according to the requirements of §§ 192.714(d) and 192.933(d). Section 192.712(c) will remain in effect as PHMSA considers its approach to address the deficiencies in PHMSA's adoption of § 192.712(c) identified in the court's August 16, 2024, decision. PHMSA will announce such regulatory actions in the <E T="04">Federal Register</E> in ordinary course. PHMSA has good cause to make these conforming corrections without notice and comment pursuant to Section 553(b)(B) of the Administrative Procedure Act (APA, 5 U.S.C. 551, <E T="03">et seq.</E> ) because, the D.C. Circuit having vacated these provisions of the 2022 Gas Transmission Final Rule, no comment could “change[ ] that fact” and additional comment would be “utterly unnecessary.” <E T="03">EME Homer City Generation, LP</E> v. <E T="03">EPA,</E> 795 F.3d 118, 134-35 (D.C. Cir. 2015) (internal quotations omitted). Section 553(b)(B) of the APA provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue amendments without providing notice and an opportunity for public comment. Notice and comment on these correction amendments is unnecessary for this ministerial action conforming the pipeline safety regulations to the result ordered by the D.C. Circuit. The Agency simply removes the three discrete provisions (two of which are found at both §§ 192.714 and 192.933) which have been vacated by the court. PHMSA finds that notice and opportunity for public comment are unnecessary under section 553(b)(B) of the APA. PHMSA also finds good cause for the immediate effective date on publication of these conforming corrections. Section 553(d) of the APA provides that a rule should take effect not less than 30 days after publication in the <E T="04">Federal Register</E> , except for when a rule relieves a restriction or when good cause is found by the agency and published within the rule allowing for earlier effect. 5 U.S.C. 553(d)(1) & (3). These conforming corrections relieve discrete requirements of the 2022 Gas Transmission Final Rule. 5 U.S.C. 553(d)(1). Moreover, good cause exists for immediate effect as, the D.C. Circuit having entered its judgment, the provisions of the code being removed herein are no longer effective, operators and the public will benefit from regulatory text reflecting the accurate regulatory environment, and no additional time is necessary to conform operator behavior. <E T="03">Omnipoint Corp.</E> v. <E T="03">F.C.C.,</E> 78 F.3d 620, 630 (D.C. Cir. 1996); 5 U.S.C. 553(d)(3). <HD SOURCE="HD1">I. Regulatory Analyses and Notices</HD> <HD SOURCE="HD2"> A. <E T="03">Legal Authority</E> </HD> These conforming corrections are published under the authority of the Secretary of Transportation delegated to PHMSA pursuant to 49 CFR 1.97. Among the statutory authorities delegated to PHMSA are the authorities vested in the Secretary under the Federal Pipeline Safety Statutes (49 U.S.C. 60101 <E T="03">et seq.</E> ). Section 60102(a) authorizes issuance of regulations governing design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. <SU>5</SU> <FTREF/> <FTNT> <SU>5</SU>   <E T="03">See</E> 87 FR at 52263 (2022 Gas Transmission Final Rule statutory authorities). </FTNT> <HD SOURCE="HD2"> B. <E T="03">Executive Order 12866 and DOT Regulatory Policies and Procedures</E> </HD> These conforming corrections have been evaluated in accordance with Executive Order 12866 (“Regulatory Planning and Review”), <SU>6</SU> <FTREF/> Executive Order 14094 (“Modernizing Regulatory Review”), <SU>7</SU> <FTREF/> and DOT Order 2100.6A (“Rulemaking and Guidance Procedures”) and are considered not significant; therefore, these conforming corrections have not been reviewed by the Office of Management and Budget (OMB). As the conforming corrections herein merely reflect the current state of the regulations following judicial review, PHMSA finds that the conforming corrections themselves impose no incremental compliance costs, nor do they adversely impair safety. <FTNT> <SU>6</SU>  58 FR 51735 (Oct. 4, 1993). </FTNT> <FTNT> <SU>7</SU>  88 FR 21879 (Apr. 11, 2023). </FTNT> <HD SOURCE="HD2"> C. <E T="03">Regulatory Flexibility Act</E> </HD> The analytical requirements of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Flexibility Fairness Act of 1996 (RFA, 5 U.S.C. 601 <E T="03">et seq.</E> ), do not apply when the agency finds good cause under the APA to adopt a rule without prior notice and comment. <SU>8</SU> <FTREF/> Because PHMSA has “good cause” under the APA to forgo comment on the corrections herein, no RFA analysis is required. <FTNT> <SU>8</SU>   <E T="03">See</E> 5 U.S.C. 603-604. <E T="03">See also</E> Small Business Administration, “A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act” 55 (2017). </FTNT> <HD SOURCE="HD2"> D. <E T="03">Paperwork Reduction Act</E> </HD> These conforming corrections impose no new or revised information collection requirements. As explained above, the conforming corrections are non-substantive as they reflect the outcome of judicial review, and they will require no change to the current incident and annual reporti ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 23k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━