Rule2026-08054
Pipeline Safety: Declaratory Order Procedures
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
April 24, 2026
Effective
April 24, 2026
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is adopting a new regulation at 49 CFR 190.13 to establish procedures for issuing declaratory orders.
Full Text
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<title>Federal Register, Volume 91 Issue 79 (Friday, April 24, 2026)</title>
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[Federal Register Volume 91, Number 79 (Friday, April 24, 2026)]
[Rules and Regulations]
[Pages 21968-21970]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08054]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 190
[Docket No. PHMSA-2026-1537; Amdt. No. 190-25]
RIN 2137-AG41
Pipeline Safety: Declaratory Order Procedures
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: PHMSA is adopting a new regulation at 49 CFR 190.13 to
establish procedures for issuing declaratory orders.
DATES: Effective on April 24, 2026.
FOR FURTHER INFORMATION CONTACT: Timothy O'Shea, Attorney-Advisor,
Office of Chief Counsel, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590, <a href="/cdn-cgi/l/email-protection#d4a0bdb9bba0bcadfabbf3a7bcb1b594b0bba0fab3bba2">timothy.o'<span class="__cf_email__" data-cfemail="ed9e85888cad898299c38a829b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Discussion
The Protecting our Infrastructure of Pipelines and Enhancing Safety
(PIPES) Act of 2020 directed PHMSA to ``allow an operator to request
that an issue of controversy or uncertainty be addressed through a
declaratory order in accordance with section 554(e) of title 5.''
Public Law 116-260, 134 Stat. 2222, Sec. 108(a)(2), Dec. 27, 2020
(codified at 49 U.S.C. 60117(b)(1)(J)). PHMSA has adopted pipeline
safety enforcement and regulatory procedures in part 190, but those
regulations do not address the issuance of declaratory orders under the
PIPES Act of 2020 mandate. PHMSA has indicated in prior proceedings
that it is ``committed to including an opportunity for public comment
in circumstances in which it exercises its authority to issue a
declaratory order.'' (88 FR 77245 (Nov. 9, 2023)). In writing this
final rule, PHMSA reviewed the declaratory order processes used by
other agencies, including the U.S. Maritime Administration, the Federal
Maritime Commission, and the Federal Communications Commission.
This final rule adopts procedures for the issuance of declaratory
orders in Sec. 190.13, including filing and public notice requirements
and provisions for the granting and denial of petitions. It also
addresses the availability of petition for reconsiderations and
judicial review.
II. Regulatory Analyses and Notices:
A. Legal Authority
This final rule is published under the authority of the Secretary
of Transportation as 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. The amendments adopted herein affect provisions in part
190 governing PHMSA's procedures and therefore pertain to ``rules of
agency organization, procedure, or practice'' that are being published
as a final rule without notice and comment and with an immediate
effective date as permitted by 5 U.S.C. 553(b)(A). PHMSA also finds
that publication of a proposed rulemaking on which comment is solicited
would be ``unnecessary'' pursuant to section 553(b)(B) of the
Administrative Procedure Act (5 U.S.C. 551 et seq.) because this
rulemaking merely codifies PHMSA's current, informal procedures
governing the submission and review of petitions for declaratory
orders.
B. Executive Order 12866
E.O. 12866, Regulatory Planning and Review, as implemented by DOT
Order 2100.6B (``Policies and Procedures for Rulemaking'') and DOT
Order 2100.7 (``Ensuring Reliance upon Sound Economic Analysis in
Department of Transportation Policies, Programs, and Activities''),
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.'' 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. DOT Order 2100.6B also specifies that
regulations should generally ``not be issued unless their benefits are
expected to exceed their costs'' except where required by law or
compelling safety need. DOT Order 2100.7 requires that ``all rulemaking
activities shall be based on sound economic principles and analysis
supported by rigorous cost-benefit requirement.''
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
final rule is a not significant regulatory action pursuant to E.O.
12866; OMB 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 procedural and analytical requirements
in E.O. 12866 as implemented by DOT Order 2100.6B and DOT Order 2100.7.
This final rule does not impose new burdens, as the changes made
therein are non-substantive and do not impose additional requirements
to how previous petitions have been processed. By establishing a
written procedure, the final rule will introduce uniformity in the
petition process. PHMSA also determined that the final rule will not
have any adverse safety impacts.
C. Executive Orders 14192 and 14219
This final rule is considered a deregulatory action pursuant to
E.O. 14192, Unleashing Prosperity Through Deregulation. PHMSA estimates
that the total costs of the rule on the regulated community will be de
minimis, as the non-substantive changes of this rulemaking do not
impose any new requirements on pipeline operators, and the changes
therein should improve the clarity and compliance with PHMSA
regulations. 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.''
D. Energy-Related Executive Orders 13211, 14154, and 14156
The President has declared in E.O. 14156, Declaring a National
Energy
[[Page 21969]]
Emergency, a National emergency to address America's inadequate energy
development production, transportation, refining, and generation
capacity. Similarly, E.O. 14154, Unleashing American Energy, 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 gases and
hazardous liquids. PHMSA finds this final rule is consistent with each
of E.O. 14156 and E.O. 14154. The final rule will give clarity to
pipeline operators on how they may request a declaratory order to
address an issue of controversy or uncertainty regarding the Federal
Pipeline Safety Regulations. The provisions of this final rule are non-
substantive and will not impose new requirements on pipeline operators.
This final rule is not a ``significant energy action'' under E.O.
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use, which requires Federal agencies to
prepare a Statement of Energy Effects for any ``significant energy
action.'' Because this final rule is not a significant action under
E.O. 12866, it will not have a significant adverse effect on supply,
distribution, or energy use.
E. Executive Order 13132: Federalism
PHMSA analyzed this final rule in accordance with the principles
and criteria contained in E.O. 13132, Federalism, and the Presidential
Memorandum (``Preemption'') published in the Federal Register on 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 final rule 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 the Federal Pipeline Safety Laws prohibits certain State
safety regulation of interstate pipelines. Under the 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
final rule 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 final rule subject to notice-and-comment rulemaking,
unless the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The RFA
applies only to rules for which an agency is required to first publish
a proposed rule (see 5 U.S.C. 603(a) and 604(a)). PHMSA is not required
to publish a notice of proposed rulemaking for this final rule, so the
RFA does not apply. However, PHMSA expects no affected operators will
face significant costs from regulatory amendments clarifying procedures
for declaratory orders; such clarification will likely reduce
regulatory burdens as it enhances regulatory certainty in the
procedures governing declaratory orders.
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 ($203 million in
2024 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 final rule does not impose unfunded mandates under UMRA
because it does not result in costs of $100 million or more in 1996
dollars ($203 million in 2024 dollars) per year for either State,
local, or Tribal governments, or to the private sector.
H. National Environmental Policy Act
PHMSA has analyzed this rule pursuant to the National Environmental
Policy Act (NEPA, 42 U.S.C. 4321 et seq.) and has determined it is
categorically excluded under 23 CFR 771.117(c)(20), which applies to
the promulgation of rules, regulations, and directives. Under section 9
of DOT Order 5610.1D (``DOT's Procedures for Considering Environmental
Impacts''), PHMSA may apply a categorical exclusion (CE) established in
another Operating Administration's procedures. PHMSA followed the
requirements outlined in DOT Order 5610.1D to apply a CE issued by the
Federal Highway Administration to this deregulatory action. PHMSA does
not anticipate any adverse environmental impacts from this rule, and
PHMSA has determined no unusual circumstances are present under 23 CFR
771.117(b). PHMSA's CE Determination memo for this action is available
on PHMSA's website.\1\
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\1\ PHMSA, Implementing Procedures, <a href="https://www.phmsa.dot.gov/planning-and-analytics/environmental-analysis-and-compliance/implementing-procedures">https://www.phmsa.dot.gov/planning-and-analytics/environmental-analysis-and-compliance/implementing-procedures</a>.
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I. Executive Order 13175
PHMSA analyzed this final rule according to the principles and
criteria in E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, and DOT Order 5301.1A (``Department of
Transportation Tribal Consultation Policies 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 final rule 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 final rule 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.
[[Page 21970]]
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,
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 final rule 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, directs 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 final rule 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 190
Administrative practice and procedure.
In consideration of the foregoing, PHMSA amends 49 CFR part 190 as
follows:
PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES
0
1. The authority citation for part 190 continues to read as follows:
Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.
0
2. Add Sec. 190.13 to Subpart A to read as follows:
Sec. 190.13 Declaratory Orders.
(a) In general. An operator may request that an issue of
controversy or uncertainty be addressed through the issuance of a
declaratory order in accordance with this section and 5 U.S.C. 554(e).
(b) Filing of petition. A petition for declaratory order is filed
by sending the petition to the Associate Administrator, Pipeline and
Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590. A petition for declaratory order must include a
complete and accurate statement of the relevant facts, identification
of an issue of controversy or uncertainty, and an explanation of how a
declaratory order would remove the uncertainty or terminate the
controversy.
(c) Notice of petition. Upon receiving a petition for declaratory
order that satisfies the requirements of this section, the Associate
Administrator will publish a notice acknowledging receipt of the
petition along with a request for public comment in the Federal
Register.
(d) Issuance of a declaratory order. After considering any
comments, the Associate Administrator will issue a declaratory order or
deny the petition. A declaratory order will include a statement of the
relevant facts, application of law, and determination as to the issue
of controversy or uncertainty. A declaratory order is effective upon
issuance to the requestor and constitutes a legally binding
determination upon the requestor and the facts described in the order.
(e) Denial of petition. If the Associate Administrator denies a
petition for declaratory order, the Associate Administrator will
respond with a brief statement of the grounds for denial.
(f) Petitions for reconsideration; finality; judicial review. The
operator may petition for reconsideration of a declaratory order issued
under this section. A petition for reconsideration must be received by
the Associate Administrator, Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, no
later than 20 days after issuance of the order. The filing of a
petition under this section does not stay the legal effect of the
order, unless the Associate Administrator provides otherwise. If the
Associate Administrator receives a petition for reconsideration under
this section, the decision on reconsideration is the final
administrative action. Any application for judicial review must be
filed no later than 89 days after the issuance of the order or the
decision on reconsideration in accordance with 49 U.S.C. 60119(a).
Issued in Washington, DC, on April 22, 2026, under authority
delegated in 49 CFR 1.97.
Paul J. Roberti,
Administrator.
[FR Doc. 2026-08054 Filed 4-23-26; 8:45 am]
BILLING CODE 4910-60-P
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