Proposed Rule2025-12132
Pipeline Safety: Rationalize Special Permit Conditions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 1, 2025
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is proposing to clarify that the conditions in a special permit must relate directly and substantially to the requirement in the Federal Pipeline Safety Regulations that an applicant is seeking to waive.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Proposed Rules]
[Pages 28590-28593]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12132]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 190
[Docket No. PHMSA-2025-0135; Amdt. No. 190-22]
RIN 2137-AF81
Pipeline Safety: Rationalize Special Permit Conditions
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: PHMSA is proposing to clarify that the conditions in a special
permit must relate directly and substantially to the requirement in the
Federal Pipeline Safety Regulations that an applicant is seeking to
waive.
DATES: Comments must be received on or before September 2, 2025.
ADDRESSES: You may submit comments identified by the Docket Number
PHMSA-2025-0135 using any of the following methods:
E-Gov Web: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This site allows the public
to enter comments on any Federal Register notice issued by any agency.
Follow the online instructions for submitting comments.
Mail: Docket Management System: U.S. Department of Transportation,
1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590-0001.
Hand Delivery: U.S. DOT Docket Management System: West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
Fax: 1-202-493-2251.
For commenting instructions and additional information about
commenting, see SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Sayler Palabrica, Transportation
Specialist, 1200 New Jersey Avenue SE, Washington, DC 20590, 202-744-
0825, <a href="/cdn-cgi/l/email-protection#1d6e7c6471786f336d7c717c7f6f747e7c5d797269337a726b"><span class="__cf_email__" data-cfemail="4734263e2b22356937262b2625352e24260723283369202831">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General Discussion
Congress has authorized PHMSA to issue an order to the owner or
operator of a pipeline facility waiving compliance with any standard
prescribed in the Federal Pipeline Safety Regulations ``on terms
[PHMSA] considers appropriate if [PHMSA] determines that the waiver is
not inconsistent with pipeline safety.'' 49 U.S.C. 60118(c)(1)(A),
(c)(2)(A). PHMSA can issue these waivers either on an emergency basis,
provided certain conditions are met, or a non-emergency basis. 49
U.S.C. 60118(c)(1) and (2). If a waiver is granted, PHMSA must state
the reasons in the order for providing that relief. 49 U.S.C.
60118(c)(3).
Congress has also authorized state authorities with a certification
or agreement with PHMSA to issue orders to owners or operators of
intrastate pipeline facilities ``waiv[ing] compliance with a safety
standard to which the certification or agreement applies in the same
way and to the same extent'' as PHMSA. 49 U.S.C. 60118(d). To issue
such a waiver, the state authority ``must give [PHMSA] written notice .
. . at least 60 days before its effective date.'' 49 U.S.C. 60118(d).
``If [PHMSA] makes a written objection before the effective date of the
waiver, the waiver is stayed'' until PHMSA makes a final decision. 49
U.S.C. 60118(d).
PHMSA refers to these congressionally authorized waivers as
``special permits'' and has codified procedures for the issuance of the
same in 49 CFR 190.341. The procedures address, among other things, the
information that must be contained in a special permit application; the
process that PHMSA follows in deciding whether to grant, deny, or renew
a special permit; and the circumstances where PHMSA may seek to revoke,
suspend, or modify a special permit. 49 CFR 190.341. In addition, the
procedures generally state that if a special permit is granted,
``[c]onditions may be imposed . . . if [PHMSA] concludes they are
necessary to assure safety, environmental protection, or are otherwise
in the public interest.'' 49 CFR 190.341(d)(2).
Experience has shown that the current language in the special
permit procedures provides too much discretion to PHMSA in determining
the conditions that should be included in granting a waiver. PHMSA has
in the past often imposed conditions that are not directly, or even
substantially, related to the requirement in the Federal Pipeline
Safety Regulations that the applicant asked to be waived. As a result
of that historical practice, owners and operators of pipeline
facilities are unable to predict what types of conditions will be
accepted by or imposed by PHMSA in granting a special permit. These
uncertain and inconsistent outcomes also discourage owners and
operators from applying for special permits or from proposing
conditions to address directly potential risks in their applications.
PHMSA's historical practice has impeded the agency's ability to
modernize the Federal Pipeline Safety Regulations to accommodate
innovative technologies and practices as well. Special permits can
serve as a proving ground for evaluating such technologies and
practices for potential adoption by regulation under PHMSA's continuing
oversight.
Multiple external stakeholders have called on PHMSA to improve
alignment between the regulatory provisions being waived and special
permit conditions. In response to a request for information on
deregulation (90 FR 14593 (Apr. 3, 2025)), the Interstate Natural Gas
Association of America (INGAA) criticized PHMSA's practice of adopting
special permits containing ``numerous'' conditions (Docket No. DOT-OST-
2025-0026-0872 (May 5, 2025)). Other pipeline industry trade
associations have echoed that criticism, calling on Congress to act to
limit PHMSA's imposition of special permit conditions ``unrelated'' to
the regulatory provision being waived. Members of Congress have
responded to those concerns, echoing interest in streamlining special
permit conditions in their public
[[Page 28591]]
statements and draft legislation introduced, for example, through the
Promoting Innovation in Pipeline Efficiency and Safety Act of 2023.
To address these concerns, PHMSA is proposing to amend Sec.
190.341 to impose a limitation on the types of conditions that can be
included special permits. The proposal would require that such
conditions be directly and substantially related to the provision in
the Federal Pipeline Safety Regulations being waived. PHMSA does not
expect that the proposed revisions would have any adverse effect on
pipeline safety.
Commenting
Instructions: Please include the docket number PHMSA-2025-0135 at
the beginning of your comments. If you submit your comments by mail,
submit two copies. If you wish to receive confirmation that PHMSA
received your comments, include a self-addressed stamped postcard.
Internet users may submit comments at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Note: Comments are posted without changes or edits to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided.
There is a privacy statement published on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Privacy Act: In accordance with 5 United States Code (U.S.C.)
553(c), DOT solicits comments from the public to inform its rulemaking
process. DOT posts these comments, without edit, including any personal
information the commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at <a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA, 5 U.S.C. 552), CBI is exempt from
public disclosure. It is important that you clearly designate the
comments submitted as CBI if: your comments responsive to this document
contain commercial or financial information that is customarily treated
as private; you actually treat such information as private; and your
comment is relevant or responsive to this notice. Pursuant to 49 Code
of Federal Regulations (CFR) 190.343, you may ask PHMSA to provide
confidential treatment to information you give to the agency by taking
the following steps: (1) mark each page of the original document
submission containing CBI as ``Confidential''; (2) send PHMSA, along
with the original document, a second copy of the original document with
the CBI deleted; and (3) explain why the information that you are
submitting is CBI. Submissions containing CBI should be sent to Sayler
Palabrica, Office of Pipeline Safety, Pipeline and Hazardous Materials
Safety Administration (PHMSA), 2nd Floor, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, or by email at <a href="/cdn-cgi/l/email-protection#a6d5c7dfcac3d488d6c7cac7c4d4cfc5c7e6c2c9d288c1c9d0"><span class="__cf_email__" data-cfemail="c1b2a0b8ada4b3efb1a0ada0a3b3a8a2a081a5aeb5efa6aeb7">[email protected]</span></a>. Any
materials PHMSA receives that is not specifically designated as CBI
will be placed in the public docket.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online
instructions for accessing the docket. Alternatively, you may review
the documents in person at the street address listed above.
II. Regulatory Analysis and Notices
A. Legal Authority
This proposed rule 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.
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 NPRM
is not a 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.).
PHMSA has complied with the requirements in E.O. 12866 as
implemented by DOT Order 2100.6B and made a preliminary determination
that this proposed rule will result in cost savings by reducing
regulatory burdens and regulatory uncertainty for pipeline facility
operators by reducing barriers to the acceptance of special permits.
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. The cost savings of this rulemaking could not
be quantified.
C. Executive Orders 14192 and 14219
This NPRM is expected to 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 NPRM on
the regulated community will be less than zero. Nor does this
rulemaking 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 preliminarily finds this NPRM is
[[Page 28592]]
consistent with each of E.O. 14156 and E.O. 14154. The proposed rule
(if finalized) will give affected pipeline operators a more efficient
process for requesting waivers for pipeline safety requirements. PHMSA
therefore expects the proposed regulatory amendments herein would in
turn increase national pipeline transportation capacity and improve
pipeline operators' ability to provide abundant, reliable, affordable
natural gas and hazardous liquid products in response to residential,
commercial, and industrial demand.
However, this proposed rule 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
proposed rule is not a significant action under E.O. 12866, it will not
have a significant adverse effect on supply, distribution, or energy
use; OIRA has therefore not designated this NPRM as a significant
energy action.
E. Executive Order 13132: Federalism
PHMSA analyzed this NPRM 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). E.O. 13132 requires
agencies to ensure 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 amendments proposed in this NPRM may operate to preempt
some State requirements, they would not have 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 proposed regulatory amendments in this NPRM 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 Regulatory Flexibility Analysis (RFA) for
a rule subject to notice-and-comment rulemaking under the
Administrative Procedure Act (5 U.S.C. 551 et seq.) 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''; 67 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 NPRM was developed in accordance with E.O. 13272 and DOT
implementing guidance to ensure compliance with the Regulatory
Flexibility Act. The proposed rule is expected to reduce regulatory
burdens. Therefore, PHMSA certifies the proposed rulemaking 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 direct 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 NPRM 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 proposed rule in accordance with NEPA and has
preliminarily determined that the rulemaking should not adversely
affect safety and therefore will not significantly affect the quality
of the human and natural environment. The public is invited to comment
on the impact of the proposed action.
I. Executive Order 13175
PHMSA analyzed this NPRM according to the principles and criteria
in Consultation 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 NPRM and preliminarily determined
that it will not significantly or uniquely affect Tribal communities or
Indian Tribal governments. The rulemaking's proposed regulatory
amendments have a broad, national scope; therefore, it would 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 preliminarily
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
[[Page 28593]]
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 NPRM and has preliminarily determined that its proposed
regulatory amendments would 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 NPRM rule and has determined that its proposed
regulatory amendments would not materially affect the cybersecurity
risk profile for pipeline facilities.
List of Subjects in 49 CFR Part 190
Pipeline Safety.
For the reasons set forth above, PHMSA proposes to amend 49 CFR
part 190 as follows:
PART 190--TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE:
MINIMUM FEDERAL SAFETY STANDARDS
0
1. The authority citation for 49 CFR part 190 continues to read as
follows:
Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.
0
2. Amend Sec. 190.341 by revising the second sentence of paragraph
(d)(2) to read as follows,
Sec. 190.341 Special Permit
* * * * *
(d) * * *
(2) * * * The Associate Administrator may only impose conditions
that are directly and substantially related to the relevant standard or
regulation being waived in the order granting the application. * * *
* * * * *
Issued in Washington, DC, on June 26, 2025, under the authority
delegated in 49 CFR 1.97.
Benjamin D. Kochman,
Acting Administrator.
[FR Doc. 2025-12132 Filed 6-27-25; 4:15 pm]
BILLING CODE 4910-60-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.