Notice2025-11180
Pipeline Safety: Recission of Advisory Bulletin on Section 114 of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2020
Primary source
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Published
June 18, 2025
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is publishing this notice to rescind an advisory bulletin and related statements of policy and applicability concerning the requirements in section 114 of the "Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2020."
Full Text
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<title>Federal Register, Volume 90 Issue 116 (Wednesday, June 18, 2025)</title>
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[Federal Register Volume 90, Number 116 (Wednesday, June 18, 2025)]
[Notices]
[Pages 26085-26090]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11180]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2021-0050]
Pipeline Safety: Recission of Advisory Bulletin on Section 114 of
the Protecting our Infrastructure of Pipelines and Enhancing Safety Act
of 2020
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice; recission of advisory bulletin.
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SUMMARY: PHMSA is publishing this notice to rescind an advisory
bulletin and related statements of policy and applicability concerning
the requirements in section 114 of the ``Protecting our Infrastructure
of Pipelines and Enhancing Safety Act of 2020.''
FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite, Operations
Supervisor, by telephone at (202) 579-8769, or by email at
<a href="/cdn-cgi/l/email-protection#4526242820372a2b6b362431312037312d32242c312005212a316b222a33"><span class="__cf_email__" data-cfemail="0665676b6374696828756772726374726e71676f72634662697228616970">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On December 27, 2020, the President signed
the ``Protecting our Infrastructure of Pipelines and Enhancing Safety
Act of 2020'' (2020 PIPES Act; Pub. L. 116-260) into law. The 2020
PIPES Act amended certain provisions in the Pipeline Safety Act, the
Federal law that authorizes the Pipeline and Hazardous Materials Safety
Administration (PHMSA) to regulate the safety of gas pipeline
facilities, underground natural gas storage facilities, liquefied
natural gas (LNG) facilities, and carbon dioxide and hazardous liquid
pipeline facilities.\1\ One of those amendments applied to 49 U.S.C.
60108, a provision that establishes certain requirements for the
inspection and maintenance of pipeline facilities.\2\
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\1\ See 49 U.S.C. 60101-60143.
\2\ Congress adopted the original version of the statute
prescribing inspection and maintenance requirements for gas pipeline
facilities in the Natural Gas Pipeline Safety Act of 1968, Public
Law 90-481, 11, 82 Stat. 720, 726-27, and added a statute
prescribing comparable requirements for hazardous liquid pipeline
facilities in the Hazardous Liquid Pipeline Safety Act of 1979,
Public Law 96-129, 210, 93 Stat. 989, 1011-12. As part of the 1994
recodification of Title 49 of the U.S. Code, Congress consolidated
these statutory requirements into a single provision in section
60108. See Public Law 103-272.
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[[Page 26086]]
Specifically, section 114(a) of the 2020 PIPES Act amended 49
U.S.C. 60108(a)(2) by, among other things, adding to the list of
factors that PHMSA and State authorities are required to consider in
reviewing the adequacy of inspection and maintenance plans. The new
factors included ``the extent to which the plan will contribute to . .
. eliminating hazardous leaks and minimizing releases of natural gas
from pipeline facilities,'' \3\ as well as ``the extent to which the
plan addresses the replacement or remediation of pipelines that are
known to leak based on the material (including cast iron, unprotected
steel, wrought iron, and historic plastics with known issues), design,
or past operating and maintenance history of the pipeline.'' \4\
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\3\ 49 U.S.C. 60108(a)(2)(D)(ii).
\4\ Id. at Sec. 60108(a)(2)(E).
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In addition to adding these new factors, section 114(a) of the 2020
PIPES Act amended the requirements in 49 U.S.C. 60108(a) to include a
provision directing PHMSA and State authorities to review the adequacy
of inspection and maintenance plans at certain intervals.\5\ Section
114(a) required an initial adequacy review to be conducted within 2
years of the enactment of the 2020 PIPES Act, or by no later than
December 27, 2022, and provided that subsequent reviews had to be
conducted ``not less frequently than once every 5 years thereafter . .
. .'' \6\ Section 114(a) also authorized PHMSA to initiate an
enforcement proceeding if ``a plan reviewed . . . does not comply with
the requirements'' of the Pipeline Safety Act or Pipeline Safety
Regulations, ``has not been adequately implemented, is inadequate for
the safe operation of a pipeline facility, or is otherwise inadequate .
. . .'' \7\
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\5\ See id. at Sec. 60108(a)(3).
\6\ 49 U.S.C. 60108(a)(3)(A).
\7\ Id. at Sec. 60108(a)(3)(C).
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Section 114(b) of the 2020 PIPES Act included a separate mandate
directing operators to make certain updates to their inspection and
maintenance plans.\8\ In particular, section 114(b) provided that
``each pipeline operator shall update the inspection and maintenance
plan prepared by the operator under section 60108(a) of [T]itle 49,
United States Code, to address the elements described in the amendments
to that section made by subsection (a) [of section 114 of the 2020
PIPES Act].'' \9\ In other words, the mandate directed operators to
update their inspection and maintenance plans to address the new
factors that Congress added in section 114(a) of the 2020 PIPES Act by
no later than December 27, 2021.
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\8\ 49 U.S.C. 60108 note.
\9\ Id.
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Finally, section 114 of the 2020 PIPES Act contained two additional
mandates directing the Comptroller General of the United States and
PHMSA to prepare certain reports.\10\ In section 114(c), Congress
instructed the Comptroller General to ``conduct a study to evaluate the
procedures used by [PHMSA] and States in reviewing plans prepared by
pipeline operators under section 60108(a) of [T]itle 49, United States
Code, pursuant to [section 114(b) of the 2020 PIPES Act] in minimizing
releases of natural gas from pipeline facilities.'' \11\ Congress
further instructed the Comptroller General to submit a report to the
committees of jurisdiction ``[n]ot later than 1 year after [PHMSA's]
review of the operator plans prepared under section 60108(a) of [T]itle
49, United States Code . . . that,'' in relevant part, ``describes the
results of the study'' and ``provides recommendations for how to
further minimize releases of natural gas from pipeline facilities
without compromising pipeline safety based on observations and
information obtained through the study.'' \12\ In section 114(d),
Congress instructed PHMSA to submit a separate report to the committees
of jurisdiction by no later than June 21, 2022, addressing ``the best
available technologies or practices to prevent or minimize, without
compromising pipeline safety,'' certain releases of natural gas, as
well as ``pipeline facility designs that, without compromising pipeline
safety, mitigate the need to intentionally vent natural gas.'' \13\
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\10\ See 2020 Pipes Act, Public Law 116-260, 114(c)-(d), 134
Stat. 1182, 2231-32.
\11\ Id. at Sec. 114(c)(1) 134 Stat. at 2231-32.
\12\ Id. at Sec. 114(c)(2)(A)-(B), 134 Stat. at 2231-32.
\13\ Id. at Sec. 114(d)(A)(i)-(iii), 134 Stat. at 2231-32.
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On June 10, 2021, PHMSA published an advisory bulletin (ADB-2021-
01) addressing the requirements in section 114 of the 2020 PIPES
Act.\14\ Stating that the mandate in section 114(b) was a ``self-
executing'' provision, PHMSA asserted in ADB-2021-01 that the
obligation to update inspection and maintenance plans by December 21,
2021, applied to operators of all PHMSA-jurisdictional pipeline
facilities, including those not used to transport natural gas.\15\
PHMSA also identified a list of items that ``[o]perators need[ed] to
consider as they update their plans to comply with section 114.'' \16\
That list of items included, among other things, ``the steps taken to
prevent and mitigate both unintentional, fugitive emissions, as well as
intentional, vented emissions.'' \17\ PHMSA reiterated the statements
made in ADB-2021-01 in a series of subsequent public statements,
including during an informational webinar for stakeholders on the
implementation of section 114(b) as well as in a rulemaking proceeding
initiated to address the requirements in section 113 of the 2020 PIPES
Act, ``Gas Pipeline Leak Detection and Repair.'' \18\
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\14\ See ``Pipeline Safety: Statutory Mandate to Update
Inspection and Maintenance Plans to Address Eliminating Hazardous
Leaks and Minimizing Releases of Natural Gas from Pipeline
Facilities,'' 86 FR 31002, 31002-03 (June 10, 2021).
\15\ See 86 FR at 31002.
\16\ Id. at 31003.
\17\ 86 FR at 31003. PHMSA defined ``fugitive emissions'' as
``any unintentional leaks from equipment such as pipelines, flanges,
valves, meter sets, or other equipment.'' Id. PHMSA defined ``vented
emissions'' as ``any release of natural gas to the atmosphere due to
equipment design or operations and maintenance procedures.'' Id.
\18\ See, e.g., ``Pipeline Safety: Informational Webinar
Addressing Inspection of Operators' Plans to Eliminate Hazardous
Leaks, Minimize Releases of Methane, and Remediate or Replace Leak-
Prone Pipe,'' 87 FR 4327, 4328-28 (Jan. 27, 2022); PHMSA, ``Webinar
Addressing Inspection of Operators' Plans to Eliminate Hazardous
Leaks, Minimize Releases of Methane & Remediate/Replace Leak-Prone
Pipe,'' at minute 20:00 (Feb. 17, 2022), <a href="https://primis-meetings.phmsa.dot.gov/archive/Recording%20of%20Section%20114%20Webinar.mp4">https://primis-meetings.phmsa.dot.gov/archive/Recording%20of%20Section%20114%20Webinar.mp4</a>; ``Pipeline Safety: Gas
Pipeline Leak Detection and Repair,'' 88 FR 31890, 31952 (proposed
May 18, 2023). A since-withdrawn, unofficial final rule in the Leak
Detection and Repair rulemaking even went a step further, contending
that section 114(b) represents a continuing obligation attaching to
any newly designated ``regulated gathering line'' subject to PHMSA
safety regulations going forward to ensure their inspection and
maintenance plans accounted for the factors identified in section
114(a)(1)(A). See PHMSA, ``Final Rule: Gas Pipeline Leak Detection
and Repair'' at 732-38 (Jan. 17, 2025), <a href="https://www.phmsa.dot.gov/">https://www.phmsa.dot.gov/</a>
sites/phmsa.dot.gov/files/ 2025-01/PHMSA%20 Final%20Rule%20-%20
Gas%20Pipeline%20Leak% 20Detection%20and%20 Repair%20-
%20As%20submitted.pdf (withdrawn on Jan. 21, 2025, before formal
publication in the Federal Register).
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On June 3, 2024, the U.S. Government Accountability Office (GAO)
completed the report required by section 114(c) of the 2020 PIPES
Act.\19\ In that report, the GAO described the process that PHMSA and
State authorities used in reviewing the updates that pipeline operators
made to their inspection and maintenance plans to address the
[[Page 26087]]
requirements in section 114(b).\20\ The GAO explained that, as part of
that process, PHMSA notified ``over 4,200 operators of all regulated
pipeline facilities--natural gas and hazardous liquid systems--as well
as liquefied natural gas plants and underground natural gas storage
facilities'' that they had an obligation to update their inspection and
maintenance plans under section 114(b), because ``PHMSA officials
stated that all of these systems could release natural gas, either
through transportation or ancillary purposes.'' \21\ The GAO further
explained that PHMSA's ``initial reviews of pipeline operators' plans
focused on verifying whether operator plans contained detailed,
technically supported measures for reducing methane emissions and
replacing or remediating leak prone pipes,'' and that ``[f]or future
reviews, PHMSA officials said they intend to develop more detailed
inspection questions and, in addition to a records review, they plan to
observe operators implementing the procedures contained in their
updated plans.'' \22\ The GAO also highlighted the challenges that
pipeline operators faced in responding to the requirements in section
114(b) and the challenges that PHMSA and State authorities experienced
in reviewing the updated inspection and maintenance plans. The GAO then
identified actions that certain stakeholders suggested could be taken
to reduce natural gas releases without compromising pipeline safety in
the future.\23\
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\19\ See Gov't Accountability Office, GAO-24-106881, Gas
Pipelines: Oversight of Operators' Plans to Minimize Methane
Emissions (2024), <a href="https://www.gao.gov/assets/gao-24-106881.pdf">https://www.gao.gov/assets/gao-24-106881.pdf</a>
[hereinafter GAO-24-106881].
\20\ See GAO-24-106881 at 4-5.
\21\ Id. at 5.
\22\ Id.
\23\ See id. at 6-10.
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On February 19, 2025, the President issued Executive Order (E.O.)
14219, ``Ensuring Lawful Governance and Implementing the President's
`Department of Government Efficiency' Deregulatory Initiative.'' \24\
In E.O. 14219, the President directed Federal agencies to review and
take appropriate action to rescind or modify existing regulations and
guidance documents that, among other things, ``are based on anything
other than the best reading of the underlying statutory authority[;] .
. . impose significant costs upon private parties that are not
outweighed by public benefits; . . . [and] impose undue burdens on
small business and impede private enterprise and entrepreneurship.''
\25\
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\24\ ``Ensuring Lawful Governance and Implementing the
President's `Department of Government Efficiency' Deregulatory
Initiative,'' 90 FR 10583 (Feb. 19, 2025).
\25\ 90 FR at 10583.
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On March 11, 2025, the Office of the General Counsel (OGC) at the
U.S. Department of Transportation (Department) issued a Memorandum to
Secretarial Officers and Heads of Operating Administrations (Guidance
Memo) establishing procedures for the review and clearance of guidance
documents and articulating certain principles that the Department's
Operating Administrations must follow in preparing such documents.\26\
One of those principles states that ``[i]f [a guidance document]
purports to describe, approve, or recommend specific conduct or actions
by regulated entities that go beyond what is set forth in the text of
relevant statutes and regulations,'' the document must ``include[]
clear and prominent statements declaring (i) that the guidance is not
legally binding in its own right and will not be relied upon by the
Department as a separate basis for affirmative enforcement action or
other administrative penalty, and (ii) that conformity with the
guidance document (as distinct from existing statutes and regulations)
is voluntary only, and nonconformity will not affect rights and
obligations under existing statutes and regulations.'' \27\
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\26\ See Office of Gen. Counsel, U.S Dep't of Transp.,
Memorandum to Secretarial Officers and Heads of Operating
Administrations: Review and Clearance of Guidance Documents (Mar.
11, 2025), <a href="https://www.transportation.gov/sites/dot.gov/files/2025-03/Review%20and%20Clearance%20of%20Guidance%20Documents.Cote%20Memo.Signed.03-11-2025.pdf">https://www.transportation.gov/sites/dot.gov/files/2025-03/Review%20and%20Clearance%20of%20Guidance%20Documents.Cote%20Memo.Signed.03-11-2025.pdf</a>.
\27\ Id. at 3.
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Recission of ADB-2021-01
PHMSA has carefully reviewed the criteria in E.O. 14219 and the
Guidance Memo and determined that ADB-2021-01 must be rescinded for the
following reasons.
Vented Emissions and Fugitive Emissions
As a threshold matter, the terms ``fugitive emissions'' and
``vented emissions'' do not appear in the text of section 114(a) or
(b), nor is there any PHMSA statute or regulation that defines either
term in the specific way described in ADB-2021-01. Federal agencies do
not have the authority to add new terms and definitions to the language
of a statute,\28\ particularly in a guidance document that is supposed
to lack the force and effect of law.\29\ Yet, PHMSA told owners and
operators of pipeline facilities in ADB-2021-01 that their inspection
and maintenance plans had to address fugitive and vented emissions to
comply with section 114(a) and (b).\30\ PHMSA even used the word
``must'' repeatedly in characterizing that obligation--indicating that
it was part of a binding, legally enforceable duty imposed directly on
owners and operators themselves.\31\ Congress did not mention
``fugitive emissions'' or ``vented emissions'' at all in section 114(a)
or (b), let alone separately define or mandate that owners and
operators consider the same in implementing their inspection and
maintenance plans. PHMSA's statements to the contrary in ADB-2021-01
were unnecessary and inconsistent with the interpretive principles laid
out in E.O. 14219 and the Guidance Memo.
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\28\ See Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 328
(2014) (``We reaffirm the core administrative-law principle that an
agency may not rewrite clear statutory terms to suit its own sense
of how the statute should operate.'')
\29\ See, e.g., Am. Min. Cong. v. Mine Safety & Health Admin.,
995 F.2d 1106, 1108-12 (D.C. Cir. 1993).
\30\ At the very least, PHMSA's decision to reference ``fugitive
emissions'' and ``vented emissions'' in ADB-2021-01 warranted
further discussion. Congress spoke in familiar terms in section
114--referring to ``hazardous leaks'' and ``releases'' of natural
gas, phrases that are commonly used in the pipeline safety
regulations. See e.g., 49 CFR 191.3 (defining incident to include an
``event that involves a release of gas''), Sec. 192.703(c)
(requiring prompt repair of ``[h]azardous leaks''). PHMSA spoke in
unfamiliar terms in ADB-2021-01--referring to ``fugitive emissions''
and ``vented emissions,'' phrases that are not used at all in the
Pipeline Safety Laws (49 U.S.C. 60101-60143) or pipeline safety
regulations--without explanation.
\31\ See Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1023
(D.C. Cir. 2000) (``At any rate, the entire Guidance, from beginning
to end--except the last paragraph--reads like a ukase. It commands,
it requires, it orders, it dictates.'').
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Pipeline Facilities Not Used To Transport Natural Gas
PHMSA indicated in ADB-2021-01 that the obligation in section
114(b) to update inspection and maintenance plans by December 27, 2021,
applied to operators of all pipeline facilities, including those not
used to transport natural gas. In adopting that expansive reading,
PHMSA failed to properly consider the text, context, structure, and
purpose of the governing provisions, all of which support a far more
limited view of section 114(b)'s applicability.\32\ PHMSA did not
acknowledge, for example, that:
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\32\ See e.g., City & Cnty. of S.F., California v. E.P.A., 145
S. Ct. 704, 715-18 (2025); Republic of Hungary v. Simon, 145 S. Ct.
480, 493-95 (2025); Bufkin v. Collins, 145 S. Ct. 728, 737-38
(2025); Truck Ins. Exch. v. Kaiser Gypsum Co., Inc., 602 U.S. 268,
277-81 (2024); Harrington v. Purdue Pharma L.P., 603 U.S. 204, 215-
25 (2024).
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<bullet> Congress included an express reference to ``natural gas''
in section 114(a), and only certain pipeline facilities transport
``natural gas'' as defined in the Pipeline Safety Act, 49
[[Page 26088]]
U.S.C. 60101(a)(2), and Pipeline Safety Regulations, 49 CFR 192.3.\33\
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\33\ Certain gases, like hydrogen, do not qualify as ``natural
gas'' under the Pipeline Safety Act and Pipeline Safety Regulations,
and hazardous liquids and carbon dioxide in a supercritical state do
not qualify as gases at all. See PHMSA, Letter of Interpretation to
Mr. Curtis Haverkamp, PI-24-0001 at 2 (May 13, 2024), <a href="https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-05/Colorado-PI-24-0001-05-10-2024-Part192.12.pdf">https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-05/Colorado-PI-24-0001-05-10-2024-Part192.12.pdf</a>; 49 U.S.C. 60101(a)(4) (defining
hazardous liquid) and 49 CFR 195.2 (same); 49 U.S.C. 60102(i)(1)
(defining carbon dioxide) and 49 CFR 195.2 (same). See also 49 CFR
195.1(b)(1) (excluding hazardous liquid transported in a gaseous
state).
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<bullet> Congress included an express reference in section
114(a)(1)(A)(i) to a rulemaking mandate, adopted as part of a companion
provision in section 113 of the 2020 PIPES Act,\34\ that requires PHMSA
to prescribe leak detection and repair requirements for certain ``gas''
pipeline facilities.\35\
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\34\ Codified at 49 U.S.C. 60102(q).
\35\ See 49 U.S.C. 60108(a)(2) (``A plan . . . must meet the
requirements of any regulations promulgated under section 60102(q) .
. . .'').
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<bullet> Congress included several express references to ``natural
gas'' in section 114(c), directing the Comptroller General to prepare a
study and submit a report on the implementation of section 114(b).\36\
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\36\ See 2020 Pipes Act, Public Law 116-260, 114(c)-(d), 134
Stat. 1182, 2231-32.
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<bullet> Congress directed PHMSA in section 114(d) to prepare and
submit a separate report that also included several express references
to ``natural gas.'' \37\
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\37\ See id. at Sec. 114(d), 134 Stat. at 2231-32.
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PHMSA's failure to properly consider the principles of statutory
construction produced a fundamentally flawed understanding of section
114; i.e., one that required operators of pipeline facilities not used
to transport ``natural gas'' to update their inspection and maintenance
plans to address criteria that only apply to pipeline facilities used
to transport ``natural gas.'' That view does not reflect the best
reading of section 114 and cannot be reconciled with the President's
directive in E.O. 14219 or the principles laid out in the Guidance
Memo.
Gathering Lines
PHMSA did not acknowledge certain critical jurisdictional
limitations in describing the applicability of section 114 in ADB-2021-
01 and other public statements, particularly with respect to gathering
lines. Section 60108 of Title 49 U.S.C. applies to ``gas pipeline
facilities'' and ``hazardous liquid pipeline facilities,'' terms that
are defined, respectively, to include pipelines used in ``transporting
gas'' or ``transporting hazardous liquid.'' \38\ As a result of a
longstanding historical exception, the definitions of ``transporting
gas'' and ``transporting hazardous liquid'' exclude certain unregulated
gathering lines in rural areas that do not qualify as ``regulated
gathering lines.'' \39\ When Congress enacted the 2020 PIPES Act in
December 2020, that exception applied to all onshore gas gathering
lines in Class 1 locations, as well as certain petroleum gathering
lines in rural areas.\40\ The exception continued to apply to those
same gathering lines on December 27, 2021, the deadline Congress
prescribed in section 114(b) for updating inspection and maintenance
plans to address the new factors in section 114(a)(1)(A).\41\
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\38\ See 49 U.S.C. 60101(a)(3), (a)(5).
\39\ See id. at Sec. 60101(a)(21)(B), (a)(22)(B)(i). Congress
included the original version of the exception for rural gas
gathering lines in the definition of ``[t]ransportation of gas'' in
the Natural Gas Pipeline Safety Act of 1968, Public Law 90-481,
2(3), 82 Stat. 720, 720, and added a comparable exception for rural
hazardous liquids gathering lines in the definition of
``[t]ransportation of hazardous liquids'' in the Hazardous Liquid
Pipeline Safety Act of 1979, Public Law 96-129, 202(3), 93 Stat.
989, 1003. Congress later modified the exceptions in both
definitions to provide PHMSA with the authority to exercise
jurisdiction over certain rural gathering lines by regulation in the
Pipeline Safety Act of 1992, Public Law 102-508, 109(b), Sec.
208(b), 106 Stat. 3289, 3295, 3303-04, as recodified by Public Law
103-272, (1994), 108 Stat. 1301, and amended by the Accountable
Pipeline Safety and Partnership Act of 1996 Public Law 104-304, 12,
110 Stat. 3793, 3802.
\40\ In March 2006, PHMSA issued a final rule exercising the
authority provided in the 1992 and 1996 Acts to define and regulate
certain gas gathering lines. See ``Gas Gathering Line Definition;
Alternative Definition for Onshore Lines and New Safety Standards,''
71 FR 13289 (Mar. 15, 2006). In June 2008, PHMSA issued a subsequent
final rule exercising the same authority with respect to certain
petroleum gathering lines. See ``Pipeline Safety: Protecting
Unusually Sensitive Areas From Rural Onshore Hazardous Liquid
Gathering Lines and Low-Stress Lines,'' 73 FR 31634 (June 3, 2008).
\41\ PHMSA exercised the authority provided in section
60101(a)(21) and (b) of the Pipeline Safety Act to make certain
rural gas gathering lines in Class 1 locations ``regulated gathering
lines'' on May 16, 2022, nearly six months after the deadline
prescribed in section 114(b) for updating inspection and maintenance
plans. See ``Pipeline Safety: Safety of Gas Gathering Pipelines:
Extension of Reporting Requirements, Regulation of Large, High-
Pressure Lines, and Other Related Amendments,'' 86 FR 63266 (Nov.
15, 2021) (Gas Gathering final rule) (establishing a May 16, 2022,
effective date for designating certain onshore, rural gas gathering
lines as Type C ``regulated gathering lines''). In the Gas Gathering
final rule, PHMSA also created a separate category of reporting-only
rural gas gathering lines using the information collection authority
provided in section 60117(c) of the Pipeline Safety Act. See 49
U.S.C. 60117(c) (``The Secretary may require owners and operators of
gathering lines to provide the Secretary information pertinent to
the Secretary's ability to make a determination as to whether and to
what extent to regulate gathering lines.''). In so doing, PHMSA
acknowledged that these reporting-only, or Type R, rural gas
gathering lines were not subject to Part 192 safety regulations--
meaning they were not ``regulated gathering lines'' under the
Pipeline Safety Act. See 86 FR at 63287, 63294.
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Rather than advising owners and operators of these non-
jurisdictional gathering lines that they had no obligation to comply
with the mandate in section 114(b), PHMSA failed to raise that
consideration at all in ADB-2021-01.\42\ More concerning, PHMSA's
February 2022 Webinar materials further muddied the waters by lumping
all gas gathering together without distinction in describing the scope
of application of section 114.\43\ Subsequently, the GAO report on
PHMSA's implementation of section 114(b) indicates that PHMSA notified
owners and operators of many operators whose lines were not ``regulated
gathering lines'' that they had to comply with the mandate and update
their inspection and maintenance plans by the December 27, 2021,
deadline.\44\ To the extent that such notifications occurred, PHMSA
clearly exceeded the scope of its authority under section 114 and the
Pipeline Safety Act.
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\42\ In developing the Gas Gathering final rule that exercised
jurisdiction over certain gas gathering lines in Class 1 locations,
PHMSA did not discuss the application of section 114 to those lines
or evaluate the associated compliance costs in preparing the risk
assessment required by 49 U.S.C. 60102(b)(5). See PHMSA, Doc. No.
PHMSA-2011-0023-0488, ``Regulatory Impact Analysis: Pipeline
Safety--Expansion of Gas Gathering Regulation Final Rule'' (Nov.
2021), <a href="https://primis-meetings.phmsa.dot.gov/archive/Leak_Dection_PRIA.pdf">https://primis-meetings.phmsa.dot.gov/archive/Leak_Dection_PRIA.pdf</a>.
\43\ PHMSA, ``Presentation: Section 114 PIPES Act of 2020
Informational Webinar'' at slide 26 (Feb. 17, 2021), <a href="https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2022-03/Section_114_Webinar.pdf">https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2022-03/Section_114_Webinar.pdf</a>.
\44\ See GAO-24-106881 at 5. Citing PHMSA annual report data
from 2021 and 2022, the GAO report indicates that PHMSA notified 803
operators of 331,803 miles of gas gathering lines that they had an
obligation to update their inspection and maintenance plans by
December 27, 2021, to comply with section 114(b). See id. at 5.
PHMSA's annual report data indicates that there were only 384
operators of 17,169.7 miles of regulated gas gathering lines in
2021, and that there were only 533 operators of 112,374.8 miles of
regulated gas gathering lines in 2022. The significant increase in
the number of operators and mileage was attributable to the issuance
of a final rule in November 2021 that established safety
jurisdiction over certain historically non-jurisdictional gas
gathering lines in Class 1 locations. See Gas Gathering final rule,
86 FR 63266 (Nov. 15, 2021). In achieving the totals described in
the GAO report, PHMSA necessarily notified owners and operators of
non-jurisdictional gas gathering lines that they had an obligation
to comply with section 114(b).
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Significant Costs and Undue Burdens
PHMSA's reading of section 114 imposed significant costs on the
pipeline industry as well as undue burdens on small businesses. As
explained above, PHMSA stated in ADB-2021-01 and elsewhere that the
mandate in section 114(b) to ``update'' inspection and maintenance
plans applied to owner and operators of all
[[Page 26089]]
pipeline facilities, regardless of whether those facilities were
subject to PHMSA's jurisdiction under the Pipeline Safety Act or used
to transport ``natural gas.'' That expansive reading of section 114(b)
led many stakeholders to believe they had an obligation to do the
unnecessary, i.e., update inspection and maintenance plans to address a
decades-old federal statutory program that did not even apply, or
impossible, i.e., eliminate leaks and minimize releases of a product
(natural gas) they did not even transport. PHMSA's reading of section
114 in the ADB-2021-01 clearly imposed unnecessary costs on these
stakeholders, and that burden was particularly heavy for operators of
small pipeline systems.\45\
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\45\ The GAO report provides information demonstrating the
extent of these adverse cost impacts. See GAO-24-106881 at 5.
According to GAO, PHMSA notified 667 operators of nearly 265,000
miles of hazardous liquid pipelines that they had an obligation to
comply with the mandate in section 114(b). PHMSA also notified 249
operators of more than 8,600 hazardous liquid breakout tanks of that
same obligation. None of these operators transports ``natural gas.''
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As discussed in more detail below, PHMSA also led many of the same
stakeholders to believe that section 114(b) imposed a continuing
obligation to ensure that their inspection and maintenance plans
address the factors identified in section 114(a)(1)(A) going forward.
That reading is not consistent with the language that Congress used in
section 114(b)--which included a discrete, near-term compliance
deadline as well as reference to ``updating'' inspection and
maintenance plans--evincing a clear intent to create a one-time
obligation applicable to gas pipeline operators subject to 49 U.S.C.
60108(a) at the time of enactment of the 2020 PIPES Act. PHMSA's
failure to properly clarify the limited reach of section 114(b) may
have already resulted in compliance burdens for any Type C gas
gathering operators (category includes many small businesses) who
relied on its previous statements. These real-world consequences are
precisely the sort of ``undue burdens'' that the President directed
Federal agencies to eliminate in E.O. 14219.
Other Important Distinctions
PHMSA failed to acknowledge other important distinctions in ADB-
2021-01. First, PHMSA did not recognize the fundamental differences in
the operation of the provisions in sections 60108(a)(1) and (a)(2) of
Title 49 U.S.C. 60108(a)(1) imposes substantive obligations on
regulated parties; it requires ``[e]ach person owning or operating a
gas pipeline facility or hazardous liquid pipeline facility'' to, among
other things, ``carry out a current written plan (including any
changes) for inspection and maintenance of each facility used in the
transportation and owned or operated by the person,'' and to keep ``[a]
copy of the plan . . . at any office of the person'' that PHMSA
``considers appropriate.'' \46\ Owners and operators of pipeline
facilities have an obligation to comply with these provisions and can
be subject to sanctions for failing to do so.\47\
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\46\ 49 U.S.C. 60108(a)(1).
\47\ See City & Cnty. of S.F. v. U.S. Dept. of Transp., 796 F.3d
993, 1000 (9th Cir. 2015) (discussing sanctions that can be imposed
on ``regulated parties'' who commit ``substantive violations'' of
the Pipeline Safety Act).
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Section 60108(a)(2), on the other hand, imposes procedural
obligations on regulators; it sets the standards that PHMSA and State
authorities are required to follow in determining if an inspection and
maintenance plan being carried out pursuant to section 60108(a)(1) is
adequate. It also prescribes the criteria that PHMSA and State
authorities are required to consider in making those determinations,
including the new criteria from section 114(a), i.e., ``the extent to
which the plan will contribute to . . . eliminating hazardous leaks and
minimizing releases of natural gas from pipeline facilities'' and
``addresses the replacement or remediation of pipelines that are known
to leak based on the material (including cast iron, unprotected steel,
wrought iron, and historic plastics with known issues), design, or past
operating and maintenance history of the pipeline.'' \48\ But unlike
section 60108(a)(1), owners and operators of pipeline facilities do not
have an obligation to comply with the provisions in section
60108(a)(2); that obligation is only imposed on PHMSA and State
authorities.
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\48\ 49 U.S.C. 60108(a)(2)(D)(ii), (E).
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These distinctions bear directly on the enforceability of the
provisions in section 114. In section 114(a), Congress amended the
procedural requirements that apply to PHMSA and State authorities in
reviewing inspection and maintenance plans under section 60108(a)(2),
including by adding new criteria to the adequacy factors. In section
114(b), Congress directed owners and operators of pipeline facilities
to update their inspection and maintenance plans to address the new
criteria by a certain deadline, i.e., December 27, 2021. Congress did
not, however, make the adequacy factors in section 60108(a)(2)
generally applicable to owners and operators of pipeline facilities; it
only imposed a limited, one-time obligation to review and update
inspection and maintenance plans to address those factors in section
114(b).
Second, nothing in section 114(b) required PHMSA and State
authorities to place greater weight on the new criteria in section
114(a) in evaluating the adequacy of inspection and maintenance plans
under section 60108(a)(2). Congress only directed PHMSA and State
authorities to ``consider'' the new criteria, along with the factors
that existed prior to the enactment of section 114, in conducting their
evaluations. Nor did Congress ``compel'' PHMSA and State authorities to
reach ``a certain outcome'' in considering any of those factors,\49\
particularly with respect to ``fugitive'' or ``vented'' emissions as
contemplated by ADB-2021-01, or otherwise limit PHMSA's ability to
exercise its enforcement discretion in conducting adequacy reviews
under section 60108(a)(2).\50\ PHMSA remains free--the same as before
the enactment of section 114--to decide how the factors should be
applied in reviewing inspection and maintenance plans, both as a
general matter and in individual cases.
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\49\ ExxonMobil Pipeline Co. v. U.S. Dep't of Transp., 867 F.3d
564, 573 (5th Cir. 2017) (explaining, in the context of a
requirement in PHMSA's integrity management regulations for
hazardous liquid pipelines, that an obligation to ``consider certain
factors . . . does not compel a certain outcome'').
\50\ U.S. v. Texas, 599 U.S. 670, 678 (2023); City & Cnty. of
S.F., 796 F.3d at 1001-03.
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Finally, PHMSA's reading of section 114 in ADB-2021-01 did not
account for the written procedures that operators are already required
to prepare and follow in determining the adequacy of inspection and
maintenance plans. Various operations and maintenance (O&M)
requirements in 49 CFR part 192, the portion of the Code of Federal
Regulations that contains the minimum Federal safety standards for gas
pipeline facilities, are relevant to eliminating hazardous leaks and
minimizing releases of ``natural gas'' from pipeline facilities.\51\
Owners and operators of gas
[[Page 26090]]
pipeline facilities already have an obligation under PHMSA regulations
to develop and implement written procedures that address those
requirements.\52\ Similarly, the integrity management (IM) requirements
for gas transmission lines \53\ and gas distribution lines \54\ include
provisions that are relevant to the replacement or remediation of leak-
prone pipelines,\55\ and operators have an obligation to develop and
implement comprehensive procedures for addressing the same.\56\ In most
cases, the adequacy factors in section 60108(a)(2)(A)-(E) should be
satisfied if an operator develops and implements comprehensive O&M and
IM plans. PHMSA should have acknowledged as much in the ADB-2021-01.
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\51\ See e.g., 49 CFR 192.613(a)-(b) (requiring operators to
conduct continuing surveillance and remediation); 49 CFR 192.703(c)
(requiring operators to promptly repairing hazardous leaks); 49 CFR
192.705 (requiring gas transmission line operators to conduct
pipeline right-of-way patrols); 49 CFR 192.706 (requiring gas
transmission line operators to perform leak surveys); 49 CFR
192.711-.719 (requiring gas transmission line operators to perform
pipeline repairs); 49 CFR 192.721 (requiring gas distribution
operators to conduct patrols); 49 CFR 192.723 (requiring gas
distribution operators to perform leak surveys); 49 CFR 192.9(c)
(requiring Type A gathering line operators to comply with
requirements for gas transmission lines, subject to certain
exceptions); 49 CFR 192.9(d)(8), (e)(1)(vii) (requiring operators of
Type B and C gathering lines to conduct leak surveys, subject to
certain exceptions).
\52\ See generally 49 CFR 192.605.
\53\ See generally 49 CFR part 192 Subpart O.
\54\ See generally 49 CFR part 192 Subpart P.
\55\ See e.g., 49 CFR 192.917, 192.935, 192.1007.
\56\ See, e.g., 49 CFR 192.907, 192.1007.
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Conclusion
For these reasons, PHMSA is rescinding ADB-2021-01--and any PHMSA
policy statements, letters of interpretation, guidance documents,
congressional testimony, and public statements that rely on or assert
the reading of the section 114 mandate expressed in ADB-2021-01.\57\
Owners and operators of pipeline facilities should adhere to the text
of section 114 of the 2020 PIPES Act and section 60108(a) of the
Pipeline Safety Act in developing and implementing their inspection and
maintenance plans. PHMSA and State authorities should do the same in
considering the factors in section 60108(a)(2) and in exercising their
inherent enforcement discretion to decide whether an operator's
inspection and maintenance plan is adequate.
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\57\ See e.g., PHMSA, Letter of Interpretation to Mr. Todd
Westcott, PI-23-0011 (Apr. 26, 2024), <a href="https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-04/Paradox-Pipeline-PI-23-0011-04-26-2024-Part192.9.pdf">https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-04/Paradox-Pipeline-PI-23-0011-04-26-2024-Part192.9.pdf</a>. PHMSA also advanced its flawed understanding of
section 114 throughout its rulemaking on leak detection and repair.
Issued in Washington, DC, on June 13, 2025, under the authority
delegated in 49 CFR 1.97.
Benjamin D. Kochman,
Acting Administrator.
[FR Doc. 2025-11180 Filed 6-17-25; 8:45 am]
BILLING CODE 4910-60-P
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