PublicationsInsights on Current Policy Issues

  • May 16, 2017

    By Frank Vlossak

    On May 8, 2017, the Office of Management and Budget (OMB) issued a memorandum titled “Guidance for Section 2 of Executive Order 13783, titled ‘Promoting Energy Independence and Economic Growth’”. E.O. 13783 directs federal agencies to review, and potentially suspend, revise or repeal, existing regulations that “burden domestic energy production.”

     

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  • April 19, 2017

    By Frank Vlossak

    On April 13, the Environmental Protection Agency (EPA) published a notice in the Federal Register soliciting public comments “on regulations that may be appropriate for repeal, replacement, or modification.” The notice is part of the EPA’s efforts to implement the Executive Order titled “Enforcing the Regulatory Reform Agenda” (E.O. 13777), which was signed by President Trump on February 24, 2017. The deadline for submitting public comments is May 15, 2017. EPA offices will also be conducting public forums on regulatory reform over the next four weeks. The Executive Order establishes mechanisms intended to reduce regulations, including by implementing the President’s January 30, 2017 Executive Order (E.O. 13771) which calls for agencies to eliminate two regulations for each new regulation they promulgate.

     

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  • April 12, 2017

    By Frank Vlossak

    Congress enacted the “Congressional Review Act” (CRA) as part of the “Contract with America Advancement Act” (P.L. 104-121) in 1996 and it is codified at 5 U.S.C. 801-808. The CRA established an expedited process for Congress to repeal recently promulgated regulations through passage of joint resolutions signed into law by the President. As of April 7, the President has signed eleven CRA resolutions into law. The House and Senate have passed two more, which the President is expected to sign. Activity on CRA resolutions will begin to wind down as the statutory cut-off for action on resolutions to repeal final rules issued during the 114th Congress is expected to occur no later than early May.

     

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W&J Publications

Insights on Current Policy Issues

By Frank Vlossak

On March 17, the Pipeline and Hazardous Materials Safety Administration (PHMSA) released the Notice of Proposed Rulemaking (NPRM) titled “Pipeline Safety: Safety of Gas Transmission and Gathering Pipelines”. The Obama Administration has been developing this significant rulemaking over the last several years. It will establish new requirements for: how operators inspect natural gas transmission pipelines, including in-line inspections (ILI); what actions they take in response to those inspections; and how they verify the maximum allowable operating pressure (MAOP) of pipelines. In developing the MAOP requirements, PHMSA is implementing Section 23(a) of the “Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011” (P.L. 112-90), which directed the agency to implement requirements for verifying the MAOP for older “grandfathered” natural gas pipelines. On August 7, 2013, PHMSA held a “Public Workshop on Integrity Verification Process”, which was one of the first steps in developing the MAOP provisions included in this proposed rule. The NPRM imposes new regulatory requirements on certain gas gathering lines, and includes other new requirements that implement provisions of the “Pipeline Safety, Regulatory Certainty, and Job Creation Act.”

PHMSA began the process of developing this NPRM in 2011, with publication of an Advanced Notice of Proposed Rulemaking (ANPRM) titled “Pipeline Safety: Safety of Gas Transmission Pipelines”. This gas pipeline safety NPRM parallels the “Safety of Hazardous Liquid Pipelines” NPRM, which PHMSA published on October 13, 2015.

Once the proposed rule is published in the Federal Register, it will be subject to a 60-day public comment period. It is also expected that PHMSA will convene its Gas Pipeline Technical Advisory Committee to provide input which will be considered in developing the final rule. Following the comment period and meeting of the Gas Pipeline Technical Advisory Committee, it will likely take PHMSA six months or more to draft and promulgate the final rule.

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By Frank Vlossak

On March 10, President Obama and Canadian Prime Minister Trudeau unveiled a series of initiatives on greenhouse gas (GHG) emissions reductions, climate change, and protection of the Arctic. One of the key announcements included in the “U.S.-Canada Joint Statement on Climate, Energy and Arctic Leadership” is a commitment by the two countries to reduce methane emissions from the oil and gas sector.

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By Frank Vlossak

The House and Senate are actively working to enact pipeline safety legislation. Proposed bills in both chambers would reauthorize the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) Office of Pipeline Safety (OPS) and provide direction to the agency on its regulatory initiatives and activities. The Senate approved the “Securing America’s Future Energy: Protecting Our Infrastructure of Pipelines and Enhancing Safety (SAFE PIPES) Act” (S. 2276) by unanimous consent on March 3. The House Transportation and Infrastructure Committee’s Railroads, Pipelines, and Hazardous Materials Subcommittee held a hearing on pipeline safety on February 25, and the House Energy and Commerce Committee’s Energy and Power Subcommittee held a hearing on a draft reauthorization bill on March 1. On the regulatory front, PHMSA is poised to publish a long-awaited and significant proposed rule on gas transmission pipeline safety within the next two weeks.

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By Frank Vlossak

The last several months have seen significant congressional and regulatory action targeting pipeline safety. The rapid pace of work on this issue is expected to continue through the remainder of 2016.

The Senate is preparing to pass a bill that would reauthorize pipeline safety programs, providing direction to PHMSA on ongoing regulatory efforts and directing the agency to establish safety standards for natural gas storage facilities. The Senate Commerce Committee approved this legislation in December. The House of Representatives has two committees with jurisdiction over pipeline safety issues. The Transportation and Infrastructure Committee has announced a hearing on pipeline safety on February 25, and the Energy and Commerce Committee is expected to hold its own hearing the following week.

PHMSA is advancing significant new regulations through the rulemaking process. The agency published the proposed rule on “Safety of Hazardous Liquid Pipelines” last October, receiving public comments on it through January 8. PHMSA is also expected to release a parallel proposed rule on interstate natural gas pipelines.

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By Shane Doucet and Michael Kans

As part of the Obama Administration’s initiative to advance equal pay policies, on January 29, 2016, the Equal Employment Opportunity Commission (“EEOC”) released a proposal that would expand the information many private entities must report to the EEOC. Specifically, the proposed revision would require all employers with 100 or more employees (both private industry and federal contractors) to collect and report data on pay and hours-worked on their annual employer information reports (i.e. EEO-1 forms). Employers have previously reported to the EEOC the number of their employees by sex, race, ethnicity, and job category. However, it should be noted that the proposal is not a rulemaking and is a proposed revision of an existing EEOC information collection.

 

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By Frank Vlossak

On January 27, the Senate opened debate on the “Energy Policy Modernization Act of 2015” (S. 2012). The Senate Energy and Natural Resources Committee approved the legislation by an 18-4 vote on July 30, 2015, and reported it to the Senate (S.Rept. 114-138) on September 9, 2015. On January 26, Murkowski introduced a substitute amendment (SA 2953), which is a modified version of the legislation that will serve as the base text for debate and further amendment. The legislation is divided into five titles covering: “Efficiency”; “Infrastructure”; “Supply”; “Accountability”; and “Land and Water Conservation Fund Reauthorization”. The bill includes provisions addressing: appliance, building and manufacturing efficiency; liquefied natural gas (LNG) exports; energy commodity market oversight; hydroelectric power; geothermal energy; U.S. helium reserves; and critical minerals.

 

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By Frank Vlossak

The past year saw significant legislative and regulatory action on energy policy and energy infrastructure issues. 2016 will continue this pace of activity. In 2015, Congress:
  • Advanced energy policy legislation, which includes reforms to the federal approval process for natural gas pipelines and the permit process for cross-border energy infrastructure.
  • Began work on updates to the pipeline safety statute.
  • Enacted legislation repealing the ban on crude oil exports.

The Executive Branch also took action in the energy sphere last year:
  • On November 6, 2015, President Obama announced his Administration had rejected TransCanada’s application for a Presidential Border-Crossing Permit.
  • The Pipeline and Hazardous Materials Safety Administration (PHMSA) published proposed rules that would expand regulation of oil and hazardous liquid pipelines.
  • PHMSA also issued proposed rules covering operator qualifications, notification requirements for pipeline spills and incidents, and other issues.
  • PHMSA finalized comprehensive rules targeting crude oil rail safety, including a mandated phase-out of legacy tank cars.
  • The Federal Energy Regulatory Commission (FERC) issued the new five-year rate index for liquid pipelines.

Key policy developments in 2016 are expected to include:
  • Congress will continue work on pipeline safety legislation, with the full Senate potentially voting on the bill approved by the Commerce Committee early in the year.
  • The Senate may take up the energy bill approved by the Senate Energy and Natural Resources Committee in July, 2015.
  • PHMSA is expected to issue a proposed rule on natural gas pipeline safety, which would parallel liquid pipeline safety Notice of Proposed Rulemaking (NPRM) published in 2015.
  • The Environmental Protection Agency (EPA) is expected to propose new regulations on the use of PCBs, which will affect natural gas pipelines.

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By Frank Vlossak

On December 3, the House of Representatives approved the “North American Energy Security and Infrastructure Act of 2015” (H.R. 8) by a 249-174 vote. The House Energy and Commerce Committee approved the legislation on September 30. As described in the Committee’s report (H.Rept. 114-347), the legislation includes provisions that would:

  • Enhance the Federal Energy Regulatory Commission’s (FERC) “role as the lead agency to coordinate concurrent [interstate natural gas pipeline] permit reviews, establish timelines, and require transparency in the process.”
  • Establish “an interagency task force to coordinate with Canada and Mexico on mutually-beneficial energy policy decisions affecting North America…”
  • Direct the Department of Energy (DOE) to “streamline the regulatory process for authorizing U.S. LNG exports by establishing a thirty day deadline for DOE to act on applications at the conclusion of the review required by the National Environmental Policy Act” (NEPA).
  • Direct “FERC to establish an Office of Compliance Assistance and Public Participation to be responsible for promoting improved compliance with Commission regulations, make recommendations on energy market behavior and enforcement, and perform outreach to the regulated community.”

 

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By Shane Doucet and Michael Kans

On October 29, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as they relate to wellness programs that offer limited inducements for an employee’s covered spouse to disclose his or her personal health information. After the EEOC issued its 2010 final rule on Title II of GINA, the EEOC noted that they had received numerous inquiries about “whether an employer will violate GINA and in particular, 29 CFR 1635.8(b)(2), by offering an employee and inducement if the employee’s spouse who is covered under the employer’s group health plan completes a health risk assessment (HRA) – including those involving a medical questionnaire, a medical examination (e.g. to detect high blood pressure or high cholesterol), or both – that seeks information about the spouse’s current or past health status, in connection with the spouse’s receipt of health or genetic services as part of an employer-sponsored wellness program.” The EEOC more recently had sued Honeywell International on October 27, 2014 alleging that their wellness program violated GINA because employees were penalized if their spouse did not complete a biometric screening. The U.S. District Court later denied the EEOC’s request for a temporary restraining order for Honeywell’s wellness program and, ever since, a cloud of uncertainty remained as to whether the EEOC would sue on these grounds again in the future. Instead, the EEOC is using its rulemaking authority to now address this issue.

 

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By Frank Vlossak

On October 1, the Pipeline and Hazardous Material Safety Administration (PHMSA) released the Notice of Proposed Rulemaking (NPRM) titled “Pipeline Safety: Safety of Hazardous Liquid Pipelines.” The NPRM proposes significant new requirements for operators of crude oil, refined product and other hazardous liquid pipelines, including requirements to: conduct integrity assessments for all pipeline segments; repair defects found at any location within set deadlines; and install leak detection systems on all new pipelines. Public comments on the NPRM must be submitted by January 8, 2016. PHMSA officials have also indicated that the NPRM will be subject to discussion at the next meeting of the Liquid Pipeline Advisory Committee, which may be held before the end of the year.

 

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PublicationsInsights on Current Policy Issues

  • May 16, 2017

    By Frank Vlossak

    On May 8, 2017, the Office of Management and Budget (OMB) issued a memorandum titled “Guidance for Section 2 of Executive Order 13783, titled ‘Promoting Energy Independence and Economic Growth’”. E.O. 13783 directs federal agencies to review, and potentially suspend, revise or repeal, existing regulations that “burden domestic energy production.”

     

    Read...

    Read More
  • April 19, 2017

    By Frank Vlossak

    On April 13, the Environmental Protection Agency (EPA) published a notice in the Federal Register soliciting public comments “on regulations that may be appropriate for repeal, replacement, or modification.” The notice is part of the EPA’s efforts to implement the Executive Order titled “Enforcing the Regulatory Reform Agenda” (E.O. 13777), which was signed by President Trump on February 24, 2017. The deadline for submitting public comments is May 15, 2017. EPA offices will also be conducting public forums on regulatory reform over the next four weeks. The Executive Order establishes mechanisms intended to reduce regulations, including by implementing the President’s January 30, 2017 Executive Order (E.O. 13771) which calls for agencies to eliminate two regulations for each new regulation they promulgate.

     

    Read...

    Read More
  • April 12, 2017

    By Frank Vlossak

    Congress enacted the “Congressional Review Act” (CRA) as part of the “Contract with America Advancement Act” (P.L. 104-121) in 1996 and it is codified at 5 U.S.C. 801-808. The CRA established an expedited process for Congress to repeal recently promulgated regulations through passage of joint resolutions signed into law by the President. As of April 7, the President has signed eleven CRA resolutions into law. The House and Senate have passed two more, which the President is expected to sign. Activity on CRA resolutions will begin to wind down as the statutory cut-off for action on resolutions to repeal final rules issued during the 114th Congress is expected to occur no later than early May.

     

    Read...

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