Alan Mayberry, the Associate Administrator for Pipeline Safety with PHMSA, talks to Pipeliners Podcast host Russel Treat about the PHMSA rulemaking process.
In this episode, you will learn about the PHMSA rulemaking process, why it’s important, and how Congress and PHMSA work together to go through the rulemaking process. You will also learn about the stakeholders involved in the process and how to get involved yourself.
PHMSA Rulemaking Process: Show Notes, Links, and Insider Terms
- Alan Mayberry is the Associate Administrator for Pipeline Safety within the Pipeline and Hazardous Materials Safety Administration (PHMSA) in Washington, D.C. Alan serves as the senior career official for pipeline safety oversight. View Alan’s full bio at PHMSA.dot.gov. Connect with Alan on LinkedIn.
- DOT (Department of Transportation) is a cabinet-level agency of the federal government responsible for helping maintain and develop the nation’s transportation systems and infrastructure.
- Pipeline and Hazardous Materials Safety Administration (PHMSA) is responsible for providing pipeline safety oversight through regulatory rulemaking, NTSB recommendations, and other important functions to protect people and the environment through the safe transportation of energy and other hazardous materials.
- The CRM Rule (Control Room Management Rule as defined by 49 CFR Parts 192 and 195) introduced by PHMSA provides regulations and guidelines for control room managers to safely operate a pipeline. PHMSA’s pipeline safety regulations prescribe safety requirements for controllers, control rooms, and SCADA systems used to remotely monitor and control pipeline operations.
- CFR 192 and 195 provide regulatory guidance on the pipeline transport of natural gas and hazardous liquids, respectively.
- NTSB (National Transportation Safety Board) is a U.S. government agency responsible for the safe transportation through Aviation, Highway, Marine, Railroad, and Pipeline. The entity investigates incidents and accidents involving transportation and also makes recommendations for safety improvements.
- Office of the Inspector General investigates complaints or allegations of wrongdoing or misconduct by employees or contractors that involve or give rise to fraud, waste, or abuse within the programs or operations of the FCC.
- Government Accountability Office is a legislative branch government agency that provides auditing, evaluation, and investigative services for the United States Congress.
- The Pipeline Safety Act of 1968 was the first federal law authorized by the U.S. Congress to prescribe safety standards for the transportation of natural and other gas by pipeline, and for other purposes.
- Gas Pipeline Advisory Committee (GPAC) reviews PHMSA’s proposed regulatory initiatives to assure the technical feasibility, reasonableness, cost-effectiveness, and practicability of each proposal. The committee also evaluates the cost-benefit analysis and risk assessment information of the proposals.
- Liquid Pipeline Advisory Committee (LPAC) reviews PHMSA’s proposed regulatory initiatives to assure the technical feasibility, reasonableness, cost-effectiveness, and practicability of each proposal. The committee also evaluates the cost-benefit analysis and risk assessment information of the proposals.
- SCADA (Supervisory Control and Data Acquisition) is a system of software and technology that allows pipeliners to control processes locally or at remote location.
- The San Bruno or PG&E Incident in September 2010 refers to a ruptured pipeline operated by the Pacific Gas & Electric Company. The rupture created a crater near San Bruno, California, caused an explosion after natural gas was released and ignited, and resulted in fires causing loss to life and property. [Read the full NTSB Accident Report.]
- The Marshall Incident refers to the Enbridge Incorporated Hazardous Liquid Rupture and Release incident, which occurred on July 25, 2010, in Marshall, Michigan. [Read the full NTSB Accident Report]
- Federal Energy Regulatory Commission (FERC) is the United States federal agency that regulates the transmission and wholesale sale of electricity and natural gas in interstate commerce and regulates the transportation of oil by pipeline in interstate commerce. FERC ensures economically efficient, safe, reliable, and secure energy for consumers.
PHMSA Rulemaking Process: Full Episode Transcript
Russel Treat: Welcome to the Pipeliners Podcast, episode 149, sponsored by Burns & McDonnell, delivering pipeline projects with an integrated construction and design mindset, connecting all the project elements, design, procurement, sequencing at the site. Burns & McDonnell uses its vast knowledge and the latest technology with an ownership commitment to safely deliver innovative, quality projects. Learn how Burns & McDonnell is on-site through it all at burnsmcd.com.
Announcer: The Pipeliners Podcast, where professionals, Bubba geeks, and industry insiders share their knowledge and experience about technology, projects, and pipeline operations. And now, your host, Russel Treat.
Russel: Thanks for listening to the Pipeliners Podcast. I appreciate you taking the time, and to show the appreciation, we give away a customized YETI tumbler to one listener each episode. This week, our winner is Matt McCutchen, with Phillips 66 Pipeline. Congratulations, Matt, your YETI is on its way. To learn how you can win this signature prize pack, stick around to the end of the episode.
This week, Alan Mayberry, Associate Administrator for Pipeline Safety with PHMSA, is joining us, and we’re going to talk about the rulemaking process. I’ve been looking forward to this one. Alan, welcome to the Pipeliners Podcast.
Alan Mayberry: Thank you very much, Russel. It’s good to be here today and talking about a subject near and dear to my heart, so I look forward to the discussion today.
Russel: Great. I asked you to come and talk about the rulemaking process. Before we jump into that, maybe you could tell the listeners a little bit about your background.
Alan: Sure. I’ve been in the energy pipeline business, or industry, if you will, for about 39 years. Of that 39 years, I was in the regulated industry or the pipeline industry for 24 years, and for the last 15 years, I’ve been here at PHMSA, a very rewarding career.
I started at the University of Tennessee, Knoxville, so I need to put a plug in for the Big Orange. Go Big Orange.
Russel: I went to Texas A&M, so when you say Big Orange around me, I have a different idea, but I get your point.
Alan: I hear you. I know we’re playing later this year, so may the best team win.
Russel: There you go. How long have you been with the agency?
Alan: I’ve been at PHMSA almost 15 years.
Russel: What is your role at the agency?
Alan: At PHMSA, I’m the Associate Administrator for Pipeline Safety. I’m the head pipeline safety official for pipelines regulated by the agency.
Russel: That makes you very well qualified to talk about rulemaking. Maybe for the listeners, we’ll start and we’ll just talk about what is rulemaking and where does it come from.
Alan: The federal government issues rules or regulations, if you will — we use the term interchangeably — or the code. We use it to establish the minimum standard for, in the case of what we do, pipeline safety.
It’s a process, which is very deliberative, of proposing a rule, getting comments on the rule, and then ultimately publishing a final rule. As you might imagine, Russel, there’s a lot that goes into that process.
Russel: Absolutely. One of the things I wonder about is how did we get from the constitution to what we do when we go to make rules or regulations.
Alan: Good question. The process, the deliberative process I’ve already referred to, is rooted really in the constitution, our form of government, or the existence of this country. It involves seeking input from stakeholders on what the policy will be, on what the standard will be.
That really forms the basis for how we work with our stakeholders to ultimately end up with a final rule that you will see in Part 192 or 195.
Russel: I’ve been getting close to regulatory rulemaking the last maybe 10 years. I’m always amazed at how functional that process can be, when you get people from very different backgrounds and very different interests trying to come together to make things better, and make them appropriate and reasonable. That sounds easy, but it’s not, at least in my experience.
Alan: The concept is easy and it seems simple. We’re all familiar with what we look at every day with the code book, but there’s a lot that goes into making that.
A lot of stakeholders have input on that process, from our own data analysis that we do or conduct to really drive where we may need to go, where we may need to tweak a policy or rule.
There are other drivers too, like the Congress, who authorizes us, and also, funds us, to other oversight agencies, such as National Transportation Safety Board that investigates accidents.
We’re familiar with NTSB in the aftermath of an accident that they investigate, and oftentimes, their recommendations will drive rulemaking.
There are other oversight agencies, like the Office of the Inspector General. Government Accountability Office, they look to also provide drivers for rulemaking.
Lastly, anyone can petition for rulemaking too. That is one area we look at. We get petitions all the time to say, “Hey, PHMSA, you need to change this rule.” We take a look at that, and that can and does drive the rulemaking process on occasion.
Russel: Most people would be knowledgeable, just from high school civics, about Congress and what Congress does and how Congress makes law.
How does the agency interact with Congress related to how these rules are getting put together and worked through the process?
Alan: Sure. Good question. Just a quick primer from that high school civics class, as you recall, the three branches of government, the executive, the legislative, and the judicial, PHMSA falls under the executive branch.
I work for the Administrator who works for the Secretary, our cabinet official for the Department of Transportation, who, in turn, works for the president, so we fall under the executive branch.
As I mentioned, Congress both authorizes our program and they also fund us, so we partner with Congress on pipeline safety oversight. They created this agency out of the Pipeline Safety Act of 1968.
Ever since that original law that put us into business, so to speak — we’re authorized, hopefully, every four years — we work with Congress. We provide technical assistance to Congress to help guide them, as they provide the legislative language that keeps us doing what we do to oversee pipeline safety in the U.S.
Russel: I want to come back, Alan, to the comment about stakeholders, having been regularly attending the GPAC and LPAC meetings for the last several years, one of the things that is always compelling to me about that process is the number, range, and types of stakeholders.
Maybe you could talk to us a little bit about who are the stakeholder groups and what are their various interests.
Alan: Sure. Stakeholders, obviously, are a key part of the process. Who are our stakeholders? They fall into three basic groups. There are the government officials, which could include other federal agencies, it could include state governments, so that’s one category.
The second category would be the public. There are public stakeholders, which would be people that live around pipelines, people who are interested in pipeline safety.
The Pipeline Safety Trust is a key stakeholder in this group. They’re the organization that is probably the main clearinghouse, if you will, for working with the public.
Lastly, the regulated industry itself, the industry that operates pipelines, we have memberships on our advisory committees from that group, as well.
There are five on each. We have two advisory committees. You referred to the LPAC and the GPAC. The LPAC and the GPAC — they have five members of each of those stakeholder groups.
Russel: One of the things you didn’t mention, but was clarifying for me, is that it’s not unusual for the members of that stakeholder group, around other governance, to go all the way down to the city level, or be somebody that’s representing first responders or firefighters or something like that, that, on the surface, if you really weren’t aware of what’s going on, might seem a little unusual.
Alan: I cover broad categories, but, yes, first responders, we have on our LPAC. We have a representative who represents that group. We also have representatives within the public group actually that represent labor. It’s a very diverse group.
It’s fascinating to see the process because you see very diverse groups, from the industry to some of the public members — which there is quite a bit from the groups we just talked about — to the government groups which also vary, and they all have different interests.
It’s fascinating to see how the process works. That’s really where the sausage making happens, and how we end up with a final rule that you see in the code book, ultimately.
Russel: Yeah. The other thing that you said a couple of times is this word, “deliberateness.” If somebody who’s not familiar with the process, they’re going to ask the question, why does it take so long to go from a recommendation to a rule? It’s not uncommon for that to be many years.
At least, in my experience, one of the things that’s been very compelling to me, as I’ve learned about the process, is when I really start understanding what deliberateness means. Maybe you could talk a little bit about how does that influence the process, that need for commitment to being very deliberate in the process.
Alan: It’s very important to get the necessary input as we develop a final rule. I’ve mentioned a deliberate process that takes time to get the input from all the stakeholders that are involved.
There are a lot of people involved in the process, from our own staff, to the stakeholders that represent our advisory committee, to stakeholders who comment on the rules that we address as they go forward, to our oversight agencies, to other members of the federal government. There’s just a lot of input to receive, and also, deliberate on as we work the process, so it takes time.
It seems like it shouldn’t take so much time. I can tell you, I’ve done this for the last 15 years, and I find it very fascinating. It’s amazing how we end up with a final rule where everyone has input. The process is very rewarding. Everyone gets their say, and we end up with a rule that represents the input that we receive.
It’s not like creating an O&M plan implant for an operator, which I’ve done in my past as well, which involves a lot fewer stakeholders and probably is a bit more controllable. In this case, while we control a process that gathers input from a variety of stakeholders, it does take a bit more time to work through the process, work through the issues, to land on something everyone can live with.
Russel: There’s a question I want to ask that, I think, is informative. When you put out a notice, when the agency puts out a notice, and they get comments back, what is the volume of the comment that you get back?
How many pages of commentary would you typically get? Could you give us a sense of that?
Alan: It could be tens of comments to thousands, literally, thousands of comments. As we consider those comments, we look at all of them. They’re very important to us. We look and review and consider every comment.
Many of them, typically, Russel, can fall into certain groups of issues and similar viewpoints. There’s a lot of that that goes on, but I can assure you, we address every comment. It is laborious.
That’s why, as you see a rule and you may hear that a gas transmission rule is 500 pages long, or what have you, what we call the preamble of the rule is where we do a lot of the administrative explanation of the rule. That includes the addressing of comments.
Where the rule, at least, in federal register text, may be 40 pages long, the preamble part might be 400 pages long.
Russel: Yeah, that’s why I’m asking the question. When you think about getting thousands of comments back from disparate stakeholder groups and having to do the analysis to go through all that and find the commonalities, where do we have a common issue.
Then, where are the arguments or positions on each side of a particular issue, and get that organized to the point that you can start making some decisions around it, you begin to have a sense of just how broad and deep that deliberateness actually is.
Alan: Right. There are a lot of steps in the process, Russel, aside from just receiving and addressing input from stakeholder groups as we develop the rule. They’re carefully crafted and undergo a significant legal review and administration review before they ultimately become final.
There are a lot of steps in the process that involve careful checks to make sure it’s really appropriate for becoming a final rule.
Russel: Yeah. Having attended some of the LPAC and GPAC meetings, which tends to occur near the end of the process, it’s interesting what even comes up at that point in the process that can cause you to take a few steps back and reconsider things that you might have thought were settled.
Alan: That’s part of the process I find most enjoyable. We go in with where we think the rule may land and help the committee with some proposed text that may work for, ultimately, landing on a position. That can change, and it usually does change based on the input.
That’s part of what makes this exciting, though. Things can change. The meetings don’t always go as you might think they would go, but that’s what the process is all about.
That gets back to why it’s important to have the stakeholders we have, that provide such great input that keeps us putting out rules that we expect are the right size and the right detail to deal with the safety issue.
Russel: Maybe shifting the conversation a little bit, you were taking about the preamble being sometimes much more volume than the actual rule itself. I actually think that the preamble is, even some of these preambles, which can be quite lengthy to sit down and read, even that’s a summary of a much more involved process.
It tends to give you the context for how we arrived at the decisions we arrived, and here were the various stakeholders and viewpoints that were key in arriving at this conclusion. I think that part of it is really fascinating, and sometimes difficult to digest and understand.
Alan: That’s a very good point, Russel. [laughs] That’s a secret we can put out there today that perhaps people don’t know it, because they’re so used to pulling up our regulation and reading it, and scratching your heads maybe sometimes, looking at various guidance that’s available out there.
A real good tool is to go back to the rule as it was written and to read the preamble, and then you’ll know, “Why in the heck did they do that?” While you’re reading the preamble, it explains it usually pretty well on why we did what we did to address [an issue].
Russel: I would agree with that, Alan. My first experience with PHMSA, I grew up as a measurement and SCADA guy. My first experience was when the Control Room Management Rule was working its way through.
I remember very clearly the first time I sat down and I read that rule. It was like I was reading Greek, to be frank. I couldn’t anchor into what it was talking about.
It wasn’t until I found some subject matter experts and some reading materials that talked about some accidents, and the findings from those accidents, and some things around human factors, science and so forth. All of a sudden, it was like, “Ooh,” and then I went back and read the preamble, and read the rule, and it all made sense.
There’s a certain amount of, you don’t know what you need to know in order to know. It’s a goofy way to say that, but there’s a certain amount of that that you just have to climb a certain part of the mountain to get to the point you have the understanding in it.
Alan: Right. There are a variety of ways people have to get clarity or ask for clarity. Obviously, the different groups that are out there that share information I think is a great way. Ask your colleagues that work with it as well, but also ask us. There are a variety of tools that people have.
On occasion, we’re asked for interpretations of the code, and so that’s one way to do it, is to write to us to seek clarification.
Russel: We could do a whole conversation just on that process right there, I’m sure.
Russel: I don’t know that I want to go there right now. I want to maybe shift a little bit more. It seems like in the last 10 years, pipelines have been more in the news than they were historically. My assumption is that that’s being somewhat impacted by shale gas, and what’s happening within particular gathering around the shale plays.
I realize that as the senior member of the agency, you’re a civil servant, so I want to be careful how I ask the question.
What I’m trying to drive at is, what are you seeing happening as a result of shale gas in the larger pressure, larger pipe, and maybe oil and gas production happening in areas where it hasn’t happened before? How is that impacting what the agency does and how is that impacting the rulemaking process?
Alan: I think it’s amazing what a difference a few years will make. It was only 10 years ago, maybe a little bit less, I was working very diligently, I might add, on the concept of importing liquefied natural gas, and lo and behold, the shale gas revolution happens, shale gas and oil revolution happens, and now we’re looking to and we are exporting liquefied natural gas.
I think, too, though, Russel, if you look at the 2010 timeframe, a number of events happened. From Deepwater Horizon, a couple of major accidents, including the one in San Bruno, the one in Marshall, Michigan, along with the shale gas revolution that the area of energy policy in the United States really has evolved.
Certainly, our agency has evolved as well, out of the original small agency that was created out of the Natural Gas Pipeline Safety Act of 1968, to where there’s a greater interest.
We’re hearing more daily from major networks, for instance, news networks that may have an interest in what we do, whereas previously it may have been reserved more to the trade journals. There’s just a lot more of an interest in energy policy and certainly pipeline policy. I’ve seen that evolve, and it’s quite significant these days.
Russel: I think that’s an excellent point you make, Alan, because if you think back just 10 years ago and where we were, we were a net importer of crude oil. We were a net importer of natural gas. We were concerned about availability of natural gas to drive the economy.
With the shale revolution, both those things have completely reversed, and in a very short period of time. I mean to frame this as question, but to some degree, that happens quicker than the agency can easily respond. Is that a fair statement?
Alan: I’d say we’ve responded quite effectively within our authority. We’ve found that we have really had to pivot for the export market, for instance, related to LNG. I’m really proud of what we’ve done in the area of working with our federal partner at the Federal Energy Regulatory Commission to make sure that we have an efficient process for reviewing LNG export applications.
Regardless of the environment of energy and the coming of age we’re talking about the shale gas revolution, our focus remains on safety. We’re a safety-focused agency. That’s the sole reason we’re in business. I might add, just incidentally, the other area that emerged as an issue, coming out of the shale gas and oil revolution is the area of gathering lines.
We’ve noticed that whereas before this current environment, gathering lines tended to be smaller diameter, short distances, but with the shale gas and oil revolution, we’re seeing where gathering lines now can be very large diameter, 42 inch, operating at over 1,000 PSI, which seems to be more like a transmission line, but yet it’s a gathering line.
That’s a notable thing that we’ve seen, the occurrence of these lines that really are gathering, but they act like transmission lines.
Russel: I think that’s a great point. If you think about that from a purely a safety and a risk perspective, a 42 inch line at over 1,000 PSI, that’s a very different risk profile than what would have historically been gathering with 2 or 4 inch lines running at 125 PSI or less.
As a safety agency, that becomes a material shift in terms of how you think about how you execute your mission, I would think.
Alan: Sure, and that’s why we’re having the conversation about gas gathering. We’re in rulemaking, so we can’t talk about it, but that’s really one of the reasons why gas gathering is an area that we’re currently in rulemaking on.
Russel: Let me wind this up. I want to ask this question. What is it that you wish pipeline operators knew, or maybe even the community more broadly than that, knew about regulatory rulemaking that they maybe don’t know?
Alan: I think a lot of operators appreciate the process. I’ll tell you, one in particular is that their input matters. I think there’s a tendency maybe to funnel input through another group or not to engage, but we rely on input to help us, whether you’re an operator or a public stakeholder.
I wish they knew that, don’t hesitate to provide that input. If you see a rulemaking docket and we’re asking for comments, don’t think that your opinion wouldn’t matter, or somebody has already covered it. It really helps if you provide that input.
I wish people knew that they could exercise that, or would that exercise that more. That may seem counterintuitive. [laughs]
Russel: Yeah, it might. Certainly, a lot of perspective about the government is that, “I don’t want to be in their business, and I don’t want them in mine.” I can get that, but I think the point you make is really on point, and that is that the rulemaking can only be as good as the input provided.
It’s the thing you don’t consider. It’s not misconsidering something that came in. It’s the thing you don’t consider that ends up being most problematic, and that’s broader than just rulemaking. That’s just in what we do in general.
Alan: The other, Russel, is to consider what goes into that process that ultimately they see in a final rule; that there’s just a lot of good people working on it, a lot of very smart people at the Office of Pipeline Safety at PHMSA that work with our stakeholders very diligently, just some of the best people.
I work with some of the brightest minds in the business who help advance rules — our writers, our engineers, our scientists — just a lot of good people doing good work to work with the stakeholders and end up with the rules that we all work with today.
Russel: Alan, thank you so much for coming on the podcast. I know you’re quite busy. I’m glad you were able to make time to do this, and I really appreciate it.
Alan: My pleasure, Russel. Thank you very much for having me.
Russel: I hope you enjoyed this week’s episode of the Pipeliners Podcast, and our conversation with Alan Mayberry.
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Russel: If you have ideas, questions, or topics you’d be interested in, please let me know on the contact us page at pipelinepodcastnetwork.com, or reach out to me on LinkedIn. Thanks for listening. I’ll talk to you next week.
Transcription by CastingWords