Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 8.
PIPELINE SAFETY REGULATIONS
The Commission adopts amendments to §8.1, relating to General
Applicability and Standards, §8.201, relating to Pipeline Safety Program
Fees, and §8.210, relating to Reports. Sections 8.201 and 8.210 are adopted
with two changes to the versions published in the February 25, 2005, issue
of the
Texas Register
(30 TexReg 991). Section
81.1 is adopted without changes and will not be republished.
Section 8.1(b) concerns minimum safety standards and adopts by reference
the United States Department of Transportation's (USDOT) pipeline safety
standards found in 49 U.S.C. §§60101,
et seq
.; 49 Code of Federal Regulations (CFR) Part 191, Transportation
of Natural and Other Gas by Pipeline; Annual Reports, Incident Reports, and
Safety-Related Condition Reports; 49 CFR Part 192, Transportation of Natural
and Other Gas by Pipeline: Minimum Federal Safety Standards; 49 CFR Part 193,
Liquefied Natural Gas Facilities: Federal Safety Standards; 49 U.S.C. §§60101,
USDOT's Amendment No. 192-96, published at 69 Federal Register (FR) 27861,
referred to a final rule published by the Research and Special Programs Administration
(RSPA) on September 15, 2003, concerning the operation and capacity of existing
pressure limiting and regulating stations on gas pipelines. The rule inadvertently
established a pressure limit that could require a reduction in the operating
pressure of some pipelines and be impracticable for others to meet. This direct
final rule establishes an appropriate pressure limit to avoid these unintended
results. The effective date for the direct final rule was September 14, 2004.
USDOT's Amendment No. 192-97, published at 29 FR 36024, concerned a regulation
published by RSPA requiring that new gas transmission lines and sections of
existing transmission lines in which pipe or components are replaced be designed
and constructed to accommodate the passage of instrumented internal inspection
devices. Responding to petitions for reconsideration, RSPA stayed enforcement
on some facilities and invited comments on proposed changes to the regulation.
The present action concludes RSPA's consideration of the petitions and comments.
For existing onshore transmission lines, this action restricts the regulation
to replacements of pipe or components. For offshore transmission lines, the
regulation is restricted to certain new lines that run between platforms or
from platforms to shore. The action aligns the regulation with the supporting
congressional directive and a related Marine Board recommendation. The effective
date was July 28, 2004; however, offshore transmission lines covered by revised §192.150
are those on which construction begins after December 28, 2005.
Amendment Nos. 192-98 and 195-82, published at 69 FR 48400, amended the
pipeline safety regulations to require operators of gas and hazardous liquid
pipelines to prepare and follow procedures for periodic inspections of pipeline
facilities located in the Gulf of Mexico and its inlets in waters less than
15 feet deep. These inspections will inform the operator if the pipeline is
exposed or a hazard to navigation. The effective date was September 9, 2004.
Amendment Nos. 195-81 and 199-22, published at 69 FR 32886, were part of
a RSPA final rule incorporating the most recent editions of the voluntary
consensus standards and specifications referenced in the federal pipeline
safety regulations to enable pipeline operators to utilize the most current
technology, materials, and industry practices in the design, construction,
and operation of their pipelines. This rule also increased the design pressure
limitation for new thermoplastic pipe, allowed the use of plastic pipe for
certain bridge applications, increased the time period for revision of maximum
allowable operating pressure after a change in class location, clarified welding
requirements, and made various other editorial clarifications and corrections.
The final rule does not require pipeline operators to undertake any significant
new pipeline safety initiatives. The effective date was July 14, 2004. After
this effective date, RSPA published a correction to Amendment 195-81 at 69
FR 54591; the original final rule included an inadvertent error in the definition
of "transmission line" in §192.3, failed to properly amend Appendix B
to part 192, inadvertently reversed a recent amendment to a welder qualification
requirement in §195.222, and contained several typographical errors.
The correction revises the relevant sections. The effective date remained
July 14, 2004.
In a previous adoption of updated USDOT changes, the Commission inadvertently
left out USDOT Amendment No. 21 to 49 CFR Part 199. That amendment, published
at 68 FR 75455, concerned USDOT's drug and alcohol testing rules and included
requirements for select employers to submit drug and alcohol testing data
to five DOT agencies. In the past, these employers have been required to use
agency-specific Management Information System (MIS) forms for this purpose,
21 different forms in all. USDOT published a final rule revising these MIS
forms into a single one-page form for use through all the DOT agencies. The
requirement for use of the form is now in 49 CFR Part 40. By this action,
the DOT agencies endorsed the use of this single form within their regulated
industries, provided their regulated employers with guidance for submission
of the form, and amended their rules accordingly. The DOT agencies are the
Federal Motor Carrier Safety Administration (FMCSA), the Federal Aviation
Administration (FAA), the Federal Transit Administration (FTA), the Federal
Railroad Administration (FRA), and the Research and Special Programs Administration
(RSPA). The effective date of that action was December 31, 2003. The Commission
includes this amendment in this proposal for clarification purposes; pipeline
operators were already required to comply with the amendment as of December
31, 2003.
The adopted amendments in §8.201(a) correct a typographical error;
in subsection (b)(1) and (2) change the calendar year from 2003 to 2004 and
the deadline by which the annual pipeline safety program fee is to be filed
from March 15, 2004, to March 15, 2005; and in subsection (b)(3)(E) add wording
that state agencies, as defined in Texas Utilities Code, §101.003, shall
not be billed this fee. This exemption was proposed as part of the resolution
of litigation brought by the Office of the Attorney General challenging the
Commission's authority to charge the pipeline safety fee to state agency customers
of gas utilities. The fee remains at $0.37 per year.
The Commission adopts the amendment in §8.210(a)(4)(A) with a change
from the proposal to correct the citation to "paragraph (1)(A) - (C) and (E)."
This change is discussed further in the Commission's response to comments.
The Commission received three comments on the proposal. Atmos Energy Corporation
(Atmos) supported the amendments in §8.201, especially the amendment
that clarifies that the pipeline safety user fee should not be billed to a
state agency. Atmos stated that the current rule's silence on this issue has
been a source of discussion with state agencies and the proposed amendment
appropriately clarifies the issue.
Atmos found the proposed amendment to §8.210(a)(4)(A) ambiguous as
to whether a written report must be filed when property damage exceeds $5,000
but is less than $50,000. The amendment provides that a written report will
be required for events described in subsection (a), which includes events
with property damage in excess of $5,000. However, Atmos stated, §8.210(a)(4)(C)
implies that the written report requirement is limited to events with more
than $50,000 in property damage. Atmos stated that this ambiguity can be addressed
by amending §8.210(a)(4)(C) to read: "The written report is
only
required for estimated damage to the property of the operator,
others, or both totaling $50,000 or more, including gas loss."
The Commission agrees that the proposed correction in §8.210(a)(4)(A)
should be clarified and has adopted this amendment with a change from the
proposal. The reference to "paragraph (1)" is adopted as "paragraph (1)(A)
- (C) and (E)." This adopted change makes Atmos' suggested wording change
to §8.210(a)(4)(C) unnecessary.
A comment from an individual concerned §8.210 and requested clarification
that the operator's judgment about the significance of an event not meeting
"subsections A through D" has not changed from what is currently reported.
The commenter cites typical scenarios such as closing significant arterial
thoroughfares, not just a residential street, and evacuations of significant
number of buildings or people, not just limited customers.
The Commission agrees and has adopted §8.210(a)(1)(E) with a slight
change. Subparagraph (E) begins "could reasonably be judged as significant
because of location . . . " The Commission's adopted change makes this wording
read "could reasonably be judged
by the operator
as significant because of location . . . " The Commission finds this
change is supported because the adopted wording matches the language of the
corresponding federal rule.
The third comment was from the State of Texas, Office of the Attorney General
of Texas, Consumer Protection Division, Public Agency Representation Section
(the State). The State commented on the definition of "state agency" in §8.201(b)(3)(E),
which refers to Texas Utilities Code, §101.003, and suggested that the
proposed definition is unnecessarily limiting and in contravention of the
purpose of Senate Bill 83 (SB 83) (73rd Legislature, 1993), the specific legislative
enactment which created the exemption of state agencies from the surcharge
under Texas Utilities Code, §104.202. That provision provides that the
"rates that a gas utility or municipally owned utility charges a State agency
may not include an amount representing a gross receipts assessment, regulatory
assessment, or similar expense of the utility." The pipeline safety fee is,
by its definition and application, a regulatory assessment or similar expense
of the utility. As such, the State asserted that all state agencies should
be exempt from the pass-through provisions of the rule, not just those using
greater than 100 Mcf per day of natural gas.
The State also asserted that the legislative history behind §104.202
shows that the legislature intended that all state agencies be excluded from
the pipeline safety fee; §104.202 was introduced in the 73rd legislative
session (1993) as part of SB 83, which was based on the recommendations of
the Texas Comptroller's 1993 state government performance review entitled
"
Against the Grain
." The State asserts that
both the Comptroller's report and the Legislative Budget Board's fiscal note
for SB 83 conclude that all state agencies should be exempt from all utility
fees and assessments under §104.202. The State also cites the Texas Code
Construction Act, in which the public interest is favored over any private
interest in enacting a statute. Because utility fees and assessment impact
state agency budgets, which are funded by taxpayers, the State asserts it
is well within the public interest to exempt all state agencies from utility
fees and assessments.
The State also contends that the Commission's proposed use of the Utilities
Code definition of "state agency" is not supported by any legal authority
that the legislature intended only "large-volume" state agency customers to
be exempt from the payment of the pipeline safety fee. The Utilities Code
definition of "state agency" refers to a state agency obtaining "the approval
described in Section 31.401(a), Natural Resources Code." Section 31.401(a)
applies to approval of contracts entered into by state agencies for the acquisition
of an annual average of 100 Mcf per day or more of natural gas. Therefore,
the State contends that the proposed definition based on the Utilities Code
definition of "state agency" results in a very narrow set of circumstances
and was not intended by the legislature.
The State suggests that the most appropriate definition of "state agency"
is found in the Government Code, §2251.001, which defines "state agency"
as "a board, commission, department, office, or other agency in the executive
branch of state government that is created by the constitution or a statute
of this state, including a river authority and an institution of higher education
as defined by Section 61.003, Education Code."
The Commission disagrees with the State's comments and declines to make
the suggested changes to the rule. Resort to legislative history is appropriate
when statutory language is ambiguous, unclear, or uncertain in its application.
While the definition of "state agency" found in Texas Utilities Code, §101.003(15),
may be narrow, it is not ambiguous. As the Texas supreme court has explained:
"When interpreting statutes we try to give effect to legislative intent. 'Legislative
intent remains the polestar of statutory construction.' However, it is cardinal
law in Texas that a court construes a statute, 'first, by looking to the plain
and common meaning of the statute's words.' If the meaning of the statutory
language is unambiguous, we adopt, with few exceptions, the interpretation
supported by the plain meaning of the provision's words and terms. Further,
if a statute is unambiguous, rules of construction or other extrinsic aids
cannot be used to create ambiguity. As our Court said long ago: When the purpose
of a legislative enactment is obvious from the language of the law itself,
there is nothing left to construction. In such case it is vain to ask the
courts to attempt to liberate an invisible spirit, supposed to live concealed
within the body of the law. The United States Supreme Court has also stated
that a court should not apply rules of construction to unambiguous language
barring exceptional circumstances. There are sound reasons we begin with the
plain language of a statute before resorting to rules of construction. For
one, it is a fair assumption that the Legislature tries to say what it means,
and therefore the words it chooses should be the surest guide to legislative
intent. Also, ordinary citizens should be able to rely on the plain language
of a statute to mean what it says. Moreover, when we stray from the plain
language of a statute, we risk encroaching on the Legislature's function to
decide what the law should be." [Citations omitted.]
Fitzgerald v. Advanced Spine Fixation Systems,
Inc
., 996 S.W.2d 864 (Tex. 1999), at 865 - 866.
In addition, it is fundamental that "a state administrative agency only
has those powers that the Legislature expressly confers upon it or that are
implied to carry out the express functions or duties given or imposed by statute.
[Citations omitted.]"
Texas Workers' Compensation
Commission v. Patient Advocates of Texas, et al.
, 136 S.W.3d 643 (Tex.
2004), at 652. The opinion continues: ". . . because a legislative body would
be hard pressed to contend with every detail involved in carrying out applicable
laws, delegation of some legislative power is both necessary and proper. [Citation
omitted.] However, the Legislature's power to delegate must be exercised with
a certain amount of caution. The Legislature may delegate its powers to administrative
agencies established to carry out legislative purposes as long as the Legislature
establishes reasonable standards to guide the agencies in exercising those
powers. [Citation omitted.]"
Id.
, at 654.
Because Texas Utilities Code, §101.003(15), defines "state agency" unambiguously,
the Railroad Commission lacks authority to expand the definition as the State
suggests.
Subchapter A. GENERAL REQUIREMENTS AND DEFINITIONS