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* Meg Heyse is a 2021 summer associate at Troutman Pepper. She is not admitted to practice law.

In April 2021, the Department of Energy (DOE) launched a 100-day initiative to strengthen cybersecurity protections in the energy sector. Just one month later, the Transportation Security Administration (TSA), an agency under the purview of the Department of Homeland Security (DHS), issued Security Directive Pipeline 2021-1 (Security Directive or Directive) to implement — for the first time — mandatory requirements for certain pipeline operators with respect to cybersecurity. The Security Directive became effective the day it was issued on May 28, 2021. Although the Security Directive was issued in final, TSA is accepting public comments on the Directive and has indicated that it may amend the Directive based on those comments.

The Security Directive mandates that owners and operators of “critical” hazardous liquid and natural gas pipeline infrastructure comply with certain portions of the DOE’s April 2021 initiative. As defined by the Directive, “critical” pipeline facilities are those that have been previously identified by the TSA as critical pursuant to the Implementing Recommendations of the 9/11 Commission Act of 2007 and as outlined in TSA’s pipeline security guidelines. For these owners and operators, the Directive has three broad mandates.
Continue Reading Mandatory Homeland Security Cybersecurity Directive

PHMSA has finally published guidance to better delineate federal oversight of midstream processing facilities for public comment. The guidance, in the form of Frequently Asked Questions (FAQs), is intended to avoid gaps or overlaps in regulatory oversight of midstream facilities, particularly between PHMSA and OSHA. Comments are due by January 4, 2021. An example of the success of working groups where industry and agencies partner to provide additional regulatory clarity, the FAQs should — if finalized after notice and comment — provide more certainty to both regulated midstream processing operators and state and federal agencies.
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Continue Reading PHMSA Publishes Midstream Processing Guidance

Two months ago, we issued a post regarding oral arguments before the U.S. Court of Appeals for the Sixth Circuit in National Wildlife Federation v. Secretary of the Department of Transportation. That case asked whether approval of pipeline spill response plans by the Pipeline and Hazardous Materials Safety Administration (PHMSA) triggered consultation and review processes under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). In an opinion released on Friday, June 5, 2020, the Sixth Circuit answered that question in the negative. The court’s decision avoids adding another substantial burden to the review process for response plans, and, since it reaches the same result as the only other appellate court to consider the question, the decision likely will not attract the attention of the Supreme Court.
Continue Reading Sixth Circuit: Spill Response Plans Do Not Trigger Endangered Species Act or NEPA Review

The Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Transportation Security Administration (TSA) recently finalized an Annex to a longstanding Memorandum of Understanding (MOU) regarding pipeline safety and security. This Annex comes just weeks after a publicized natural gas pipeline cybersecurity intrusion and responds to several recommendations from the Government Accountability Office (GAO) discussed in our earlier alert to update the prior Annex which had not been reviewed or revised since its inception over 14 years ago. The updated Annex emphasizes information-sharing and coordination between the agencies and signals that the agencies are moving forward on satisfying outstanding GAO recommendations. While this is a step in the right direction, questions remain whether TSA is the appropriate agency to oversee pipeline security and whether existing voluntary standards should be mandatory.
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Continue Reading As Cyberthreats Continue, PHMSA and TSA MOU Stresses Information Sharing and Coordination

Tomorrow’s Federal Register will include three final rules published by the Pipeline and Hazardous Materials Safety Administration (PHMSA) that have been years in the making:  (1) Safety of Gas Transmission Pipelines: Maximum Allowable Operating Pressure Reconfirmation, Expansion of Assessment Requirements, and Other Related Amendments; (2) Safety of Hazardous Liquid Pipelines; and (3) Enhanced Emergency Order Procedures.  All three rules have been lingering at the Office of Management and Budget (OMB) for review for at least several months, and probably none have been more anticipated than the gas transmission and liquid pipeline rules.
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Continue Reading PHMSA Publishes Long-Awaited Final Rules

Both the Senate and the House now have bills in varying stages of review for reauthorization of the Pipeline Safety Act, which expires at the end of September.  There are some notable differences in the bills, reflecting the Democratic majority in the House and the Republican majority in the Senate.  Neither bill has been put before the entire chamber for a vote.  If they do progress further, it remains to be seen how the bills will ultimately be reconciled.
Continue Reading Pipeline Safety Act Reauthorization: Issues for Resolution

Since 9/11, no new rules or regulations have been promulgated to address pipeline or LNG facility security or cybersecurity. Although the Transportation Security Administration (TSA) recently released an updated version of its “Pipeline Security Guidelines” (Guidelines) that were last issued in 2011, those Guidelines remain advisory.  And both the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI) have made only informal outreach to pipeline and LNG industry as issues have arisen.  As the threat of both cyber and physical attacks on critical energy infrastructure continues, however, some question whether minimal standards for prevention of threats should be in place.  In particular, there has been recent attention by the U.S. Government Accountability Office (GAO), members of Congress, and at least one Federal Energy Regulatory Commission (FERC) commissioner. (See E&E News Article of May 29, 2018).  These discussions, along with recent proposed legislation in the House and the fact that the Pipeline Safety Act is up for reauthorization later this year, are likely to bring these issues into sharper focus.
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Continue Reading Pipeline Security and Cybersecurity: Are Guidelines Enough to Protect Critical Infrastructure?

The U.S. DOT and 10 other federal agencies signed a Memorandum of Understanding (MOU) on April 9, 2018, which became effective on April 10, 2018.  The MOU[1] is intended to implement Executive Order 13807 (Aug. 15, 2017), which established a “One Federal Decision” policy for infrastructure projects that require authorizations by multiple federal agencies.…

The Department of Transportation formally requested public comment on existing rules and “other agency actions,” including but not limited to guidance documents and policy statements, that are good candidates for repeal, replacement, suspension, or modification without compromising safety.  This request covers all DOT modal agencies, including PHMSA, the FAA, the FRA, NHTSA, among others.   In addition to requesting comments, DOT indicated that it may hold a public meeting on these issues. Comments are due November 1, 2017.
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Continue Reading DOT Requests Comments on Regulatory Review

PHMSA issued a brief advisory reminding gas transmission operators of training and qualification requirements under the integrity management regulations.  The advisory responds to inconsistencies in operator implementation of these rules (at 49 C.F.R. Part 192.915) and outlines PHMSA’s “expectations.”  Further, the advisory addresses inadequacies highlighted by a 2015 National Transportation Safety Board’s (NTSB) Safety Study.  In issuing the advisory, PHMSA appears to be taking an expansive interpretation of certain aspects of its integrity management rules regarding training and qualifications, which may not be supported by the regulations and thus may not be enforceable.
Continue Reading Expansive Integrity Management Training and Qualification Advisory