Pipeline Safety: Regulations Implementing Memorandum of Understanding With the Department of the Interior

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 191, 192, and 195

[Docket No. RSPA 97-2096; Amdt. 191-12; 192-81; 195-59]

RIN 2137-AC99

Pipeline Safety: Regulations Implementing Memorandum of

Understanding With the Department of the Interior

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Confirmation of effective date of direct final rule.

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SUMMARY: This document confirms the effective date of the direct final

rule that excluded from DOT safety regulations producer-operated gas

and hazardous liquid pipelines located on the Outer Continental Shelf

(OCS) upstream from where operating responsibility transfers to a

transporting operator. Also, in response to comments from interested

persons, RSPA has clarified the applicability of the direct final rule.

DATES: The effective date of the direct final rule published November

19, 1997, at 62 FR 61692 is confirmed to be March 19, 1998.

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

[email protected].

SUPPLEMENTARY INFORMATION: With the signing on December 10, 1996, of a

memorandum of understanding (MOU), the Department of the Interior (DOI)

and DOT agreed to a new division of their respective safety regulatory

responsibilities over offshore pipelines on the OCS (62 FR 7037;

February 14, 1997). Under the MOU, DOT will establish and enforce

design, construction, operation, and maintenance regulations and

investigate certain accidents for all pipelines located downstream of

the point at which operating responsibility for the pipelines transfers

from a producing operator to a transporting operator. DOI will regulate

those producer-operated OCS pipelines located upstream of this point.

The MOU also provides that individual operators of production and

transportation facilities may define the boundaries of their respective

facilities.

RSPA published a direct final rule amending the DOT pipeline safety

regulations in 49 CFR parts 191, 192, and 195 consistent with the MOU

(62 FR 61692; November 19, 1997). The direct final rule excluded from

these DOT regulations OCS pipelines upstream from the point where

operating responsibility transfers from a producing operator to a

transporting operator. Also, operators were required to durably mark

the specific points at which operating responsibility transfers or, if

it is not practicable to durably mark a transfer point, to depict the

transfer point on a schematic maintained near the transfer point.

The procedures governing issuance of direct final rules are in 49

CFR 190.339. These procedures provide for public notice and opportunity

for comment subsequent to publication of a direct final rule. They also

provide that unless an adverse comment or notice of intent to file an

adverse comment is received within a specified comment period, the

Administrator will issue a confirmation document advising the public

that the direct final rule will either become effective on the date

stated in the direct final rule or at least 30 days after the

publication date of the confirmation. If an adverse comment or notice

of intent

[[Page 12660]]

to file an adverse comment is received, RSPA will issue a timely notice

in the Federal Register to confirm that fact and withdraw the direct

final rule in whole or in part. According to the procedures, an adverse

comment is one that explains why the rule would be inappropriate,

including a challenge to the rule's underlying premise or approach, or

would be ineffective or unacceptable without a change. Comments that

are frivolous or insubstantial are not adverse. A comment recommending

a rule change in addition to the rule is not an adverse comment, unless

the commenter states why the rule would be ineffective without the

additional change.

As discussed below, we received six comments on the direct final

rule. We do not consider any of the comments to be adverse comments

under the direct final rule procedures. Consequently, we are publishing

this document to confirm the effective date announced in the direct

final rule.

The Chevron Pipe Line Company and the American Petroleum Institute

commended the action. However, the other four commenters, though

supportive of the direct final rule in concept, expressed concerns

about application of the new rules.

The Southern Natural Gas Company and its affiliate, Sea Robin

Pipeline Company (hereafter collectively ``SONAT''), noted that new

rules intended to exclude certain producer-operated OCS pipelines from

DOT regulations would conflict with existing rules that already exclude

certain offshore pipelines. Because the direct final rule did not alter

these existing rules, SONAT recommended changes to them to remove the

conflict. For example, SONAT suggested we revise 49 CFR 192.1(b)(1),

which excludes from DOT regulations offshore gas pipelines located

upstream from certain production facilities, to apply only shoreward of

the OCS.

In its comments, SONAT did not describe the conflict it perceived,

and we believe that none exists. The new OCS exclusionary rules are

fully compatible with the existing offshore exclusionary rules. Each

exclusion applies independently. So, if a producer-operated OCS

pipeline is excluded from DOT regulation by a new OCS exclusionary

rule, that exclusion is not negated if the pipeline is not also

excluded by an existing offshore exclusionary rule. Further, the

existing offshore exclusionary rules are needed to maintain the

jurisdictional limits of DOT regulations over those producer-operated

offshore pipelines not covered by the MOU and the direct final rule.

In addition, SONAT suggested we revise the new OCS exclusionary

rules, each of which was inserted in a list of other exclusions, to be

``grammatically harmonious'' with the list. SONAT recommended word

changes to make the new entries responsive to the introductory clause

of the list. Although we appreciate the need for these suggested

changes, they are editorial in nature and not essential to make the

direct final rule effective or substantively valid. We will make the

necessary editorial changes in a future rulemaking action.

Finally, SONAT pointed out that the new rules on identifying

transfer points did not provide a compliance deadline for installing

durable markers. The preamble of the direct final rule mentioned that

operators would have 60 days after the rules become final to durably

mark transfer points. SONAT suggested we revise the rules so the

deadline for marking transfer points not identifiable by durable

marking--September 15, 1998--applies to marking all identified transfer

points. This single deadline, SONAT said, would eliminate confusion,

simplify the rules, and provide enough time for consultation and proper

marking. We agree that the rules text is somewhat at variance with the

preamble, but not in a way that increases the burden on operators. In

the absence of a specific deadline for installing durable markers, we

construe the new rules on identifying transfer points to require that

all identified points be marked, either durably or schematically, by

September 15, 1998.

The Offshore Operators Committee, representing 87 companies, and

the Chevron U.S.A. Production Company commented on a situation not

covered by the MOU or the direct final rule: namely, producer-operated

pipelines that run from the OCS to state territory with no transfer of

operating responsibility. There is no question the state portion of

these producer-operated pipelines comes under DOT regulations. But

these commenters thought the direct final rule was unclear whether DOT

or DOI regulations cover the OCS portion. The commenters asked that we

revise the direct final rule to clarify that DOT regulations cover the

OCS portion of the producer-operated pipelines so that DOT regulations

apply to the entire pipeline.

The direct final rule applies only to OCS pipelines on which there

is a transfer of operating responsibility from a producing operator to

a transporting operator. So producer-operated OCS pipelines regulated

by DOT on which there is no transfer of operating responsibility will

remain under DOT regulations and may also be subject to DOI

regulations. But DOI has indicated it is modifying its MOU

implementation rule to address the potential dual regulation of

pipelines extending downstream (shoreward) of production facilities on

the OCS. Also, the commitment of DOT and DOI to develop more compatible

regulations should serve to mitigate regulatory problems that arise

when OCS pipelines cross the jurisdictional boundary between the two

agencies. Therefore, although the commenters' suggestions are beyond

the scope of the direct final rule and are not necessary to make the

rule effectual, in view of the cooperative efforts of the two agencies,

we believe the difficulties the commenters foresaw will be minimal.

Only the Administrator of RSPA has been delegated authority to

issue final rules on pipeline safety. The direct final rule on OCS

pipelines was issued by the Associate Administrator for Pipeline

Safety. My signature below affirms that I subscribe to that action and

to the direct final rule.

Issued in Washington, D.C. on March 10, 1998.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 98-6629 Filed 3-13-98; 8:45 am]

BILLING CODE 4910-60-P