FHWA Publishes 16 Deregulation Rulemakings – 5-30-25

Yesterday there was an unusual occurrence in the Federal Register, one agency published 16 separate rulemakings. The DOT’s Federal Highway Administration (FHWA) published five direct final rules and eleven notices of proposed rulemakings (NPRM). These are all part of the new administration’s deregulation efforts.

This area is not one that I have paid a lot of attention to in this blog and is certainly out of my area of expertise. But I thought that this bulk deregulation effort deserved some notice.

The final rules all took effect yesterday. The notices of proposed rulemakings all have a comment due date of June 30^th, 2025.

Final Rules

Rescinding Requirements Regarding Management and Monitoring Systems. (90 FR 22854) Summary: “This final rule rescinds the regulations issued on December 10, 1996, and amended on February 14, 2007, Management and Monitoring, thereby removing obsolete regulations governing transportation management and monitoring systems. Further, FWHA finalizes the proposed updates to the regulations governing risk-based Asset Management Plans by determining that no further action is needed.”

National Performance Management Measures; Rescinding Requirements for the First Performance Period. (90 FR 22852) Summary: “This final rule rescinds the requirements pertaining to the performance targets established by State departments of transportation (State DOTs) and Metropolitan Planning Organizations (MPOs) for the first performance period (Calendar Years 2018 through 2021), as originally promulgated in the regulations issued on January 18, 2017, National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program.”

Rescinding Regulations on Projects of National and Regional Significance Evaluation and Rating. (90 FR 22856) Summary: This final rule rescinds the rule and regulations issued on October 24, 2008, Projects of National and Regional Significance Evaluation and Rating.”

Rescinding Preliminary Engineering Project 10-Year Repayment Provision. (90 FR 22858) Summary: “This final rule rescinds a portion of the regulations issued on May 10, 2001, Federal-Aid Project Agreement, which required that State Departments of Transportation (DOTs) repay FHWA Federal funds provided for preliminary engineering for a project if right-of-way acquisition for, or actual construction of, the road for which this preliminary engineering is undertaken is not started in ten years.”

State Highway Agency Equal Employment Opportunity Programs. (90 FR 22850) Summary: “The FHWA is removing outdated and duplicative regulations requiring State highway agencies to submit to FHWA, on an annual basis, Equal Employment Opportunity (EEO) Program plans for FHWA approval. Currently, FHWA is responsible for oversight of State highway agencies' EEO programs, which include collection and analysis of internal employment data, development of an internal affirmative action hiring plan, and contractor compliance reporting. These regulations overlap with, and are duplicative of, other Federal requirements enforced by other Federal agencies. In addition, an Executive order (E.O.) issued by President Donald J. Trump repealed a previous E.O. that was relied on to initially promulgate the regulation. Elimination of these regulations will reduce administrative and monetary burdens on Federal-aid recipients.”

NPRMs

Rescinding Requirements Regarding Bridges on Federal Dams. (90 FR 22874) Summary: “FHWA is proposing to rescind the rule and regulations issued on October 10, 1974, Bridges on Federal Dams.”

Rescinding Requirements Regarding Required Contract Provisions for Federal-Aid Construction Contracts (Other Than Appalachian Contracts). (90 FR 22876) Summary: “FHWA is proposing to rescind the rule and certain regulations issued on October 2, 1987, Required Contract Provisions.”

Rescinding Requirements Regarding the Forest Highway Program. (90 FR 22881) Summary: “FHWA proposes to rescind the regulations issued regarding the Forest Highway Program.”

Highway Safety Improvement Program; Withdrawal. (90 FR 22883) Summary: “FHWA withdraws its February 21, 2024, notice of proposed rulemaking (NPRM), which proposed to update FHWA's Highway Safety Improvement Program (HSIP) regulations. FHWA will proceed to formally withdraw the proposed rule from FHWA's upcoming Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”).”

Rescinding Regulations Regarding Management Systems Pertaining to the Bureau of Indian Affairs and the Indian Reservation Roads Program. (90 FR 22889) Summary: “FHWA proposes to rescind the regulations issued on February 27, 2004, Federal Lands Highway Program; Management Systems Pertaining to the Bureau of Indian Affairs and the Indian Reservation Roads Program.”

Rescinding Regulations Regarding Management Systems Pertaining to the Fish and Wildlife Service and the Refuge Roads Program. (90 FR 22887) Summary: “FHWA proposes to rescind the regulations issued on February 27, 2004, Federal Lands Highway Program; Management Systems Pertaining to the Fish and Wildlife and the Refuge Roads Program.”

Rescinding Regulations Regarding Management Systems Pertaining to the Forest Service and the Forest Highway Program. (90 FR 22885) Summary: “FHWA proposes to rescind the regulations issued on February 27, 2004, Federal Lands Highway Program; Management Systems Pertaining to the Forest Service and the Forest Highway Program.”

Rescinding Regulations Regarding Management Systems Pertaining to the National Park Service and the Park Roads and Parkways Program. (90 FR 22883) Summary: “FHWA proposes to rescind the regulations issued on February 27, 2004, Federal Lands Highway Program; Management Systems Pertaining to the National Park Service and the Park Roads and Parkways Program.”

Rescinding Regulations on Procedures for Advance Construction of Federal-aid Projects. (90 FR 22872) Summary: “FHWA proposes to rescind a specific provision of the rule and regulations issued on March 30, 1990, Advance Construction of Federal-aid Projects.”

Rescinding Requirements Regarding Federal-Aid Contracts for Appalachian Contracts. (90 FR 22878) Summary: “FHWA is proposing to rescind the rule and regulations issued on September 30, 1974, Federal-Aid Contracts (Appalachian Contracts).”

Rescinding Requirements Regarding Geodetic Markers. (90 FR 22870) Summary: “FHWA is proposing to rescind the rule and regulations issued on July 19, 1974, Geodetic Markers.”

PHMSA Sends 2 Deregulation ANPRMs to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received two advanced notices of proposed rulemaking (ANPRMs) from DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA):

Hazardous Materials: Mandatory Regulatory Review to Unleash American Energy and Improve Government Efficiency, and

Pipeline Safety: Mandatory Regulatory Reviews to Unleash American Energy and Improve Government Efficiency

Neither rulemaking was listed in the Fall 2024 Unified Agenda, so there is no formal explanation about the purpose and scope of either rulemaking. It does appear, however, that these two rules are in response to the requirements of §3(a) and §3(b) of EO 14154, Unleashing American Energy, requiring agencies to “identify those agency actions that impose an undue burden on the identification, development, or use of domestic energy resources” and then “develop and begin implementing action plans to suspend, revise, or rescind all agency actions identified as unduly burdensome”.

Under the Hazardous Materials rulemaking, I suspect that PHMSA will address the suspension of the authorization to ship liquified natural gas by railcars that was implemented by the Biden Administration.

PHMSA Publishes Pipeline Safety Deregulation Final Rule

The DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in Monday’s Federal Register (86 FR 2210-2242, available on-line today) on “Gas Pipeline Regulatory Reform”. The NPRM for this rulemaking was published in April 2020.

The following changes were made from the notice of proposed rulemaking language:

Farm Taps (Sections 191.11, 192.740, 192.1003) –

◦ Removed the proposed § 192.740(c)(4) from the final rule, and

◦ Replaced ‘unregulated gathering line’ with ‘gathering pipeline other than a regulated gathering line as determined in § 192.8 of this part” in §192.740(c)(3);

Master Meter Operators (Sections 192.1003, 192.1005, 192.1015) – no change;

Mechanical Fitting Failure Reporting (Sections 191.12, 192.1009) – revised the proposed part C of the Gas Distribution Annual Report form to clarify that operators should report the number of hazardous leaks “involving” a mechanical joint failure, rather than “caused” by a mechanical joint failure;

Monetary Threshold for Incident Reporting (Section 191.3, New Appendix A to Part 191) –

◦ Set new property damage threshold to $122,000, and

◦ Incorporated the inflation adjustment formula described in the preamble to the NPRM into a new appendix A to part 191;

External Corrosion Control: Monitoring (SECTION 192.465) – clarified that remote inspection is permitted by the pipeline safety regulations (PSR);

Atmospheric Corrosion: Monitoring (Sections 192.481, 192.491, 192.1007, 192.1015) – revises  §192.491(c) to clarify that an operator must retain records of the two most recent atmospheric corrosion inspections in order to use the 5-year inspection interval for facility distribution service line;

Plastic Pipe (Sections 192.7, 192.121, 192.281, 192.285, Appendix B to Part 192) – changes the minimum wall thickness required to use plastic pipe with a size of 1-inch CTS with a design factor of 0.40 rather than 0.32;

Test Requirements for Pressure Vessels (Section 192.153) –

◦ Clarifies in §192.153(e)(3) that inspections may occur prior to the pressure vessel tie-in on-site with the pipeline,

◦ Clarifies that any pressure vessel that is temporarily or permanently installed in a pipeline facility must be inspected for damage unless it has been pressure tested on its supports at its installation location, and

◦ Adding a new § 192.153(e)(6) that clarifies testing and inspection requirements for relocating an existing pressure vessel that has previously been used in service for permanent installation at a new location in a pipeline facility;

Welding Process Requirement (Section 192.229) – no change; and

Pre-Test Applicability (Section 192.507) - removed the term “hydrostatic” from the new § 192.507(d);

The effective date of this final rule is March 21^st, 2021.

This rulemaking was initiated by the Trump Administration as part of their move to ease the regulatory burden on industry. As such it may undergo review by the Biden Administration or the 117^th Congress. Biden could delay the effective date of this rule to allow for a detailed review.

OMB Approves PHMSA Pipeline Deregulation Final Rule

Yesterday the OMB’s Office of Information and Regulatory Affairs announced that had approved a final rule for DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) for “Gas Pipeline Regulatory Reform”. This rulemaking was sent to OIRA for review in October. The NPRM for this rulemaking was published in June of 2020.

According to the Fall 2020 Unified Agenda listing for this rulemaking:

“This rulemaking would amend the Pipeline Safety Regulations to adopt a number of actions that ease regulatory burdens on the construction and operation of gas transmission, gas distribution and gas gathering pipeline systems. These amendments include regulatory relief actions identified by internal agency review, existing petitions for rulemaking, and public comments on the Department of Transportation Regulatory Review and Transportation Infrastructure notices.”

This rulemaking is likely to be reviewed by the 117^th Congress under the Congressional Review Act (5 USC Chapter 8) and enforcement would be likely delayed by the Biden Administration.

PHMSA Sends Pipeline Safety Deregulation Final Rule to OMB

Yesterday the OMB’s Office of Information and Regulatory Review (OIRA) announced that it had recevied for review a final rule addressing “Gas Pipeline Regulatory Reform” from the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA). The notice of proposed rulemaking for this action was published in June of 2020.

According to the abstract in the Fall 2020 Unified Agenda for this rulemaking:

“This rulemaking would amend the Pipeline Safety Regulations to adopt a number of actions that ease regulatory burdens on the construction and operation of gas transmission, gas distribution and gas gathering pipeline systems. These amendments include regulatory relief actions identified by internal agency review, existing petitions for rulemaking, and public comments on the Department of Transportation Regulatory Review and Transportation Infrastructure notices.”