Pipeline Safety: Administrative Procedures; Updates and Technical Corrections, 58897-58915 [2013-23047]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
[Rules and Regulations]
[Pages 58897-58915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23047]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 190, 192, 193, 195, and 199

[Docket No. PHMSA-2012-0102; Amdt. Nos. 190-16, 192-118, 193-24, 195-
98, 199-25]
RIN 2137-AE92


Pipeline Safety: Administrative Procedures; Updates and Technical 
Corrections

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: PHMSA is amending the pipeline safety regulations to update 
the administrative civil penalty maximums for violation of the safety 
standards to reflect current law, to update the informal hearing and 
adjudication process for pipeline enforcement matters to reflect 
current law, and to make other technical corrections and updates to 
certain administrative procedures. The amendments do not impose any new 
operating, maintenance, or other substantive requirements on pipeline 
owners or operators.

DATES: The effective date of these amendments is October 25, 2013.

FOR FURTHER INFORMATION CONTACT: Kristin T.L. Baldwin, Office of Chief 
Counsel, 202-366-6139, kristin.baldwin@dot.gov; or mail to: Renita K. 
Bivins, Office of Chief Counsel, 202-366-5947, renita.bivins@dot.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Notice of Proposed Rulemaking

    On August 13, 2012, PHMSA published a Notice of Proposed Rulemaking 
(NPRM) under Docket ID PHMSA-2012-0102, (77 FR 48112) notifying the 
public of the proposed changes to 49 CFR Parts 190, 192, 193, 195, and 
199. The amendments proposed in the NPRM were intended to implement 
mandates in the Pipeline Safety, Regulatory Certainty, and Job Creation 
Act of 2011 (Pub. L. 112-90) (the 2011 Act) and to make other technical 
and administrative corrections. During the 30-day comment period, PHMSA 
received a total of five comments. Three comments were from trade 
organizations, including the Interstate Natural Gas Association of 
America (INGAA), the Association of Oil Pipelines and the American 
Petroleum Institute (AOPL/API), and the American Gas Association (AGA). 
One comment was received from a pipeline operator, who solely endorsed 
the comments of INGAA. The final comment was received from a private 
citizen.

B. Advisory Committee Meetings

    On December 11-13, 2012, the Technical Pipeline Safety Standards 
Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety 
Standards Committee (THLPSSC) met jointly in Alexandria, Virginia. The 
TPSSC and THLPSSC are statutorily mandated advisory committees under 49 
U.S.C. 60115 that provide non-binding recommendations to PHMSA on 
proposed safety standards, risk assessments, and safety policies for 
natural gas and hazardous liquid pipelines. Although the NPRM did not 
implicate the committees' statutory mandate with regard to proposed 
safety standards, PHMSA requested input from the committees given the 
potential impact on administrative enforcement processes.
    After considering the NPRM and public comments, the TPSSC 
recommended approval of the NPRM as proposed. The THLPSSC recommended 
approval of the NPRM, with unspecified modifications consistent with 
the public comments and certain principles, including transparency, 
completeness, increased formality, timeliness, regulatory certainty, 
and due process.

II. Discussion of Comments

    The comments received from the trade organizations and the THLPSSC 
are discussed below. The comment from the private citizen is not 
discussed because it was outside the scope of this rulemaking. To 
facilitate the reader, the following list of contents is provided:

Subpart A--General

1. Sec.  190.1 Purpose and scope.
2. Sec.  190.3 Definitions.
3. Sec.  190.5 Service.
4. Sec.  190.7 Subpoenas; witness fees.
5. Sec.  190.11 Availability of informal guidance and interpretive 
assistance.

Subpart B--Enforcement

6. Sec.  190.201 Purpose and scope.

[[Page 58898]]

7. Sec.  190.203 Inspections and investigations--requests for 
specific information.
8. Sec.  190.203 Inspections and investigations--obstructing an 
investigation.
9. Sec.  190.205 Warnings.
10. Sec.  190.206 Amendment of plans or procedures (redesignated 
from Sec.  190.237).
11. Sec.  190.207 Notice of probable violation.
12. Sec.  190.208 Response options (redesignated from Sec.  
190.209).
13. Sec.  190.209 Case file (new section).
14. Sec.  190.210 Separation of functions (new section).
15. Sec.  190.211 Hearing--exchange of evidentiary material and 
withdrawal.
16. Sec.  190.211 Hearing--formality.
17. Sec.  190.211 Hearing--transcripts.
18. Sec.  190.211 Hearing--recommended decision.
19. Sec.  190.212 Presiding official, powers, and duties (new 
section).
20. Sec.  190.213 Final order.
21. Sec.  190.217 Compliance orders generally.
22. Sec.  190.219 Consent order.
23. Sec.  190.221 Civil penalties generally.
24. Sec.  190.223 Maximum penalties.
25. Sec.  190.225 Assessment considerations.
26. Sec.  190.227 Payment of penalty.
27. Sec.  190.233 Corrective action orders.
28. Sec.  190.239 Safety orders.
29. Sec.  190.241 Finality (new section).
30. Sec.  190.243 Petitions for reconsideration (redesignated from 
Sec.  190.215).

Subpart C--Criminal Enforcement (New Subpart)

31. Sec.  190.291 Criminal penalties generally (redesignated from 
Sec.  190.229).
32. Sec.  190.293 Referral for prosecution (redesignated from Sec.  
190.231).

Subpart D--Procedures for Adoption of Rules (Redesignated From 
Subpart C)

33. Sec.  190.319 Petitions for extension of time to comment.
34. Sec.  190.321 Contents of written comments.
35. Sec.  190.327 Hearings.
36. Sec.  190.335 Petitions for reconsideration.
37. Sec.  190.337 Proceedings on petitions for reconsideration.
38. Sec.  190.338 Appeals.
39. Sec.  190.341 Special permits.

Amendments to Parts 192-199

40. Sec.  192.603 General provisions.
41. Sec.  193.2017 Plans and procedures.
42. Sec.  195.402 Procedural manual for operations, maintenance, and 
emergencies.
43. Sec.  199.101 Anti-drug plan.

Subpart A--General

1. Purpose and Scope (Sec.  190.1)

    The NPRM proposed to amend Sec.  190.1(a) to remove the citation to 
the hazardous materials transportation laws. PHMSA did not receive any 
comments and is adopting the amendment. Consistent with other 
amendments in this rule, PHMSA is adding a reference to the Federal 
Water Pollution Control Act (33 U.S.C. 1321) in accordance with section 
10 of the 2011 Act.

2. Definitions (Sec.  190.3)

    The NPRM proposed to amend the definition of ``Presiding Official'' 
and to add new definitions for ``Associate Administrator,'' ``Chief 
Counsel,'' ``Day,'' and ``Operator.'' No comments were received 
regarding the definitions. PHMSA is adopting the definitions with minor 
changes. A revised definition of ``Associate Administrator,'' which 
includes his or her delegate, is adopted. The definition of ``Day'' is 
revised to clarify that it means a calendar day, unless otherwise 
noted. PHMSA is also clarifying the definition of a ``Respondent'' 
includes the recipient of any enforcement action under Subpart B of 
Part 190.

3. Service (Sec.  190.5)

    PHMSA did not propose to amend Sec.  190.5, but INGAA requested 
that PHMSA amend Sec.  190.5(b) by designating specific individuals 
that may be served with notices, orders, or other PHMSA documents. 
INGAA proposed that PHMSA adopt a practice under which operators 
designate certain individuals to receive service and then have a 
continuing obligation to update that information. INGAA stated that its 
members could provide this information while updating gas transmission 
annual reports. INGAA noted that, in the experience of its members, 
enforcement notices and orders are often served on various field 
offices and officials without direct responsibility for compliance.
    INGAA also proposed that PHMSA modify Sec.  190.5(c) to provide 
that service by mail is complete upon actual receipt and not upon 
mailing, as is stated in the current regulatory language. INGAA 
referenced certain sections of Part 190 in which the response time 
frame is triggered by respondent's receipt of the relevant document, 
and other sections where the response period seems to be triggered by 
mailing. To avoid shortening operators' response times and to establish 
consistency throughout Part 190, INGAA suggested that PHMSA adopt 
service upon receipt as the more equitable option.
    Response: With regard to designating an individual for service, 
PHMSA notes that most operators already include the name of a senior 
executive officer on their annual reports. In response to the comments, 
however, PHMSA is considering changes to the annual reporting forms to 
allow all operators to designate a senior executive for the specific 
purpose of service of enforcement actions. Changes to the annual 
reporting form would be proposed in a future rulemaking action. In the 
meantime, as an internal policy, PHMSA now advises that all official 
notices of enforcement action be addressed to the most senior executive 
officer (e.g., President or Chief Executive Officer). PHMSA believes 
this is an appropriate mechanism for ensuring enforcement notices are 
served on an operator.
    With regard to when service is effective, there are certain 
response deadlines in Part 190 that are triggered upon actual receipt 
of the document, even though service itself is effective upon mailing 
by certified mail. For example, a respondent has 30 days from receipt 
to respond to a notice of probable violation and 20 days from receipt 
of a final order to pay an assessed civil penalty. By comparison, a 
respondent has 20 days from service to file a petition for 
reconsideration under Sec.  190.215 and 10 days from service to request 
a hearing on a corrective action order under Sec.  190.233. In response 
to the comment, PHMSA is amending Sec.  190.243 (formerly Sec.  
190.215) and Sec.  190.233 to clarify that the filing periods run from 
receipt and not the date of mailing. Service of the notice or order in 
an enforcement proceeding by certified mail will continue to be 
effective upon mailing, which is consistent with the manner in which 
other Federal agencies serve such documents. Based on these amendments, 
PHMSA is not amending Sec.  190.5(c) in the manner suggested by the 
comment. PHMSA is, however, amending the regulation to remove 
references to registered mail as that method of service is not 
presently used.

4. Subpoenas; Witness Fees (Sec.  190.7)

    PHMSA proposed to amend Sec.  190.7(a) to clarify that the agency 
is authorized by statute to issue subpoenas for any reason to carry out 
its duties at any time, both during the investigative phase of an 
enforcement action and pursuant to a hearing. PHMSA also proposed to 
amend Sec.  190.7(d) to harmonize the service of subpoenas with the 
service of other documents under Sec.  190.5 to reflect that service by 
certified mail is complete upon mailing.
    Comments: No comments were received with respect to Sec.  190.7(a). 
AOPL/API objected to the proposed amendment to Sec.  190.7(d) on the 
basis that it would be inconsistent with (1) the requirement that 
mailing be completed by certified or registered mail, both of which 
require signature of

[[Page 58899]]

the recipient; and (2) the provision in Sec.  190.7(d) that service may 
be achieved by ``any method whereby actual notice is given to the 
person.'' AOPL/API asserted that it is inappropriate to deem that 
service upon mailing achieves ``actual notice.''
    Response: PHMSA is adopting the amendment to Sec.  190.7(a) as 
proposed. The amendment to Sec.  190.7(d) was proposed to harmonize 
service of a subpoena with Sec.  190.5, which states that service is 
complete upon mailing for documents served by certified mail. 
Nevertheless, in response to the comments, PHMSA is withdrawing the 
proposal to amend Sec.  190.7(d). PHMSA is also removing references to 
registered mail as that method of service is not presently used.

5. Availability of Informal Guidance and Interpretive Assistance (Sec.  
190.11)

    The NPRM proposed to remove language that the Office of Pipeline 
Safety (OPS) would respond to inquiries related to the pipeline safety 
regulations by the next business day because OPS has not always been 
able to meet this deadline. PHMSA also proposed to remove Sec.  
190.11(a)(2) and (b)(2) to eliminate the availability of informal 
guidance directly from the Office of Chief Counsel (OCC).
    Comments: AOPL/API commented that PHMSA should retain Sec.  
190.11(a)(2) and (b)(2) to further regulatory certainty, administrative 
efficiency, and the conservation of agency resources. The comment 
stated that the availability of written legal interpretations avoids 
mistaken regulatory interpretations, allows for the allocation of 
resources towards pipeline safety, and provides parties outside the 
regulated community with a potential resource. AOPL/API also noted that 
PHMSA failed to provide an explanation for the agency's proposal to 
withdraw the availability of guidance and legal interpretations from 
the OCC.
    Response: Under Sec.  190.11, OPS provides guidance regarding 
compliance with the pipeline safety regulations through telephonic and 
internet assistance, written regulatory interpretations, and responses 
to questions or opinions concerning pipeline safety issues. The OCC has 
customarily provided legal assistance through these processes by 
assisting OPS in the development of written responses to requests for 
interpretations. PHMSA believes having OPS serve as a single point of 
contact for guidance and interpretive assistance will permit more 
efficient handling of these types of requests. The OCC will continue to 
provide legal assistance through this process. Accordingly, PHMSA is 
adopting the amendments as proposed.

Subpart B--Enforcement

6. Purpose and Scope (Sec.  190.201)

    The NPRM proposed to amend Sec.  190.201 to include 33 U.S.C. 
1321(j) within the scope of the enforcement procedures enumerated in 
Subpart B, consistent with section 10 of the 2011 Act. PHMSA received 
no comments on this proposed amendment. Therefore, PHMSA adopts the 
amendment as proposed.

7. Inspections and Investigations--Requests for Specific Information 
(Sec.  190.203)

    In the NPRM, PHMSA proposed to revise Sec.  190.203(c) to allow for 
the issuance of a request for information (sometimes referred to as a 
``request for specific information'' or ``RSI'') at any time, rather 
than only pursuant to an inspection, and to require operators to 
respond to such a request no later than 30 days, rather than 45 days.
    Comments: AOPL/API commented that PHMSA should implement both a 
minimum 15 day response period and a maximum 45 day response deadline, 
or in the alternative, require the Associate Administrator to extend 
the proposed deadline upon reasonable request of the operator. Given 
that an RSI could require the collection of complex and voluminous 
records, necessitating ongoing collaboration with PHMSA, AOPL/API 
opposed shortening the response deadline.
    INGAA expressed a concern that the proposed change would impinge on 
an operator's due process rights by unreasonably circumscribing the 
ability of an operator to collect the requested information within the 
allotted time. It also stated that a process for contesting the scope 
and response deadline should be made explicit in the regulations.
    Response: Based on its experience, PHMSA continues to believe that 
in most cases, operators can reasonably respond to an RSI within 30 
days. To address the comments, however, PHMSA is adopting an option for 
the operator to request an extension of time and to propose an 
alternative submission date. An operator requesting an extension may 
request that the deadline for submission of the information be stayed 
while the extension is considered. PHMSA is further changing the 
proposed language to provide that, while the default response time is 
30 days, an RSI may provide another response time. Thus, depending on 
the scope of the request, the RSI may provide a longer or, if 
reasonable, a shorter response time. Due to the time-sensitive nature 
of some investigations and the need for PHMSA to maintain the maximum 
information collection authority prescribed by statute, PHMSA declines 
to adopt a 15-day minimum response period. Finally, we believe it is 
unnecessary to adopt a process for contesting an RSI, but will consider 
any issues on a case-by-case basis.

8. Inspections and Investigations--Obstructing an Investigation (Sec.  
190.203)

    In the NPRM, PHMSA proposed to amend Sec.  190.203(e) to implement 
section 2 of the 2011 Act, which requires operators to afford all 
reasonable assistance in the investigation of an accident or incident 
and to make available all records and information that pertain to the 
accident or incident. The proposed amendment further provides that any 
person obstructing such an investigation can be subject to civil 
penalties under Sec.  190.223.
    Comments: AOPL/API stated that the proposed amendment does not 
allow for circumstances where an operator may possess responsive 
documents that it is either legally barred from disclosing or may 
decline to provide on the basis that it includes proprietary or 
confidential information. AOPL/API therefore requested that PHMSA 
exclude any records and information legally protected or barred from 
disclosure by Federal or State law or court order.
    Response: PHMSA routinely receives proprietary or confidential 
information from operators related to enforcement actions and is 
required to screen those documents before releasing them under the 
Freedom of Information Act. Through these existing controls, which 
include consultation with the operator before disclosure and an 
opportunity for the operator to object to disclosure, information that 
should not be publically disclosed can be protected. Accordingly, PHMSA 
is adopting the amendment as proposed.

9. Warnings (Sec.  190.205)

    In the NPRM, PHMSA proposed to amend Sec.  190.205 to clarify that 
an operator may respond to a warning letter. PHMSA also proposed to 
clarify that a warning may be issued for a probable violation of 33 
U.S.C. 1321(j) or a PHMSA order or regulation issued thereunder.
    Comments: AOPL/API requested modification of the proposal to permit 
operators to initiate hearings on warning items and to require that 
PHMSA address warning items in a final order if contested by a 
respondent. The

[[Page 58900]]

comment reasoned that warning letters can subject a respondent to 
further enforcement action or influence a civil penalty assessment and 
therefore, PHMSA should allow for increased due process.
    Response: A warning letter or a warning item contained in a notice 
of probable violation is an allegation that OPS identified a potential 
issue, which if found in a future inspection, may subject the operator 
to future enforcement action. Warnings allow an operator to address a 
potential compliance issue before the next inspection to avoid a 
potential enforcement action. Warnings are complete upon issuance and 
PHMSA does not make subsequent findings as to whether the factual 
allegations in the warning were proven by evidence in the record. 
Accordingly, a warning by itself is never the basis for a civil penalty 
or compliance order in the proceeding in which the warning is brought.
    An operator may respond to a warning if it chooses by providing 
additional information. If an operator submits objections to a warning 
item contained in a notice of probable violation, the final order 
issued in that case should note the respondent's comments. Again, PHMSA 
does not adjudicate the warning to determine if the allegations were 
proven. Accordingly, PHMSA believes it is not necessary to adopt a 
formal process for addressing warnings. PHMSA is amending the 
regulation to clarify that an operator may respond to a warning, but no 
adjudication is conducted on warning items.

10. Amendment of Plans or Procedures (Sec.  190.206, Redesignated From 
Sec.  190.237)

    The NPRM proposed to redesignate the section governing amendment of 
plans or procedures from Sec.  190.237 to Sec.  190.206 for 
organizational purposes. PHMSA did not receive any comments and is 
adopting the amendment.

11. Notice of Probable Violation (Sec.  190.207)

    PHMSA proposed several amendments to Sec.  190.207, including 
amending Sec.  190.207(a) to clarify that a notice of probable 
violation (NOPV) may be issued for a probable violation of 33 U.S.C. 
1321(j) or a PHMSA order or regulation issued thereunder. PHMSA also 
proposed amending Sec.  190.207(c) to clarify that a Regional Director 
may amend the notice of probable violation prior to issuance of a final 
order.
    Comments: PHMSA did not receive any comments on the proposed 
amendments, but received a comment regarding documentation that should 
be included with an NOPV.
    INGAA stated that when serving an NOPV, PHMSA should include the 
agency's ``violation report.'' The violation report is an inspection 
report prepared by the Regional Director or inspector in each case to 
support the NOPV. It contains the evidence of the alleged violation 
and, if applicable, the identification of factors that influence the 
proposed civil penalty. Currently, operators may request the violation 
report at any time following receipt of an NOPV. INGAA encouraged PHMSA 
to automatically include the violation report when serving the NOPV to 
promote settlement, encourage early dispute resolution, and provide 
respondents with pertinent materials at the outset of an enforcement 
action.
    Response: PHMSA has considered the comment by INGAA and continues 
to agree that respondents should have access to the violation report as 
early as practicable. PHMSA notes, however, that not all respondents 
request the violation report in each case. Violation reports can be 
voluminous, exceeding hundreds of pages particularly if there are 
copies of the operator's own procedures and records. To save the 
expense of unnecessarily duplicating and sending large volumes of 
documents in cases where a respondent would not otherwise request them, 
PHMSA is not adopting INGAA's suggestion to provide the violation 
report automatically in every case. To ensure the violation report is 
made available to a respondent as soon as practicable, PHMSA is 
amending Sec.  190.208 as set forth below to: (1) Clarify that 
respondents may request the violation report at any time following 
receipt of an NOPV; and (2) Require the Regional Director to provide 
the violation report to a respondent within five business days of 
receiving the request. PHMSA is also amending Sec.  190.209 to 
reference the violation report as part of the case file that may be 
requested by the respondent.

12. Response Options (Sec.  190.208, Redesignated From Sec.  190.209)

    PHMSA proposed to amend the response options (formerly at Sec.  
190.209) to clarify the available options when responding to an NOPV. 
In summary, a respondent may choose not to contest an NOPV, to contest 
an NOPV in writing without requesting a hearing, or to request a 
hearing. The NPRM also proposed to correct a cross-reference in the 
regulation.
    Comments: INGAA requested several changes to the regulation, 
including adding an option to respond in writing to compliance order 
cases where the respondent does not request a hearing, and an option 
for a respondent to request the execution of a consent order under 
Sec.  190.219 when the NOPV proposes a civil penalty.
    INGAA requested that a respondent have 30 days from receipt of the 
evidentiary material to submit its written response. Alternatively, 
INGAA requested that a respondent receive all evidentiary material 
within two business days of its request.
    Response: For organizational purposes, PHMSA is redesignating this 
regulation as Sec.  190.208. The rule clarifies that an operator may 
contest any NOPV in writing with or without requesting a hearing. As to 
INGAA's suggestion that PHMSA explicitly allow for the execution of a 
consent order in civil penalty cases, PHMSA declines to adopt a formal 
regulation accepting offers of settlement in civil penalty cases for 
the reason stated below under Sec.  190.219.
    As to INGAA's request to amend the response period or require 
evidentiary material within two business days, PHMSA notes that such 
evidentiary material will be contained in the violation report, which 
the Regional Director will provide to a respondent within five business 
days of receiving a request. If a respondent in a particular case 
believes additional time is necessary to respond following receipt of 
the violation report, the respondent may submit a timely request in 
writing to the Regional Director explaining the reason for the 
extension request. Accordingly, PHMSA believe it is unnecessary to 
adopt the changes to the response deadline suggested by the commenter.

13. Case File (Sec.  190.209, New Section)

    The NPRM did not propose a new regulation to describe the case file 
in an enforcement proceeding, but multiple commenters requested certain 
documents be made part of the case file available to the respondent. In 
particular, INGAA commented that in order for PHMSA to prohibit ex 
parte communications and incorporate increased transparency into the 
decision making process, the regulations must explicitly recognize that 
the regional recommendation is part of the case file provided to the 
respondent. In addition, INGAA commented that respondents must be 
afforded time to review and respond to the recommendation.
    AOPL/API commented that, to ensure due process and basic fairness 
in both the administrative process and upon judicial review, the 
respondent should

[[Page 58901]]

be provided certain case file materials that are not currently provided 
to the respondent, including (1) the evaluation and recommendation 
submitted by the Regional Director; (2) the recommended decision 
submitted by the Presiding Official or attorney from the OCC; and (3) 
the factual and analytical bases for civil penalties.
    Response: PHMSA recognizes that the 2011 Act prohibits ex parte 
communications and that both the regulatory language and practices of 
the agency must conform. Restrictions on ex parte communications are 
discussed in greater detail under Sec.  190.210.
    In light of these comments, PHMSA is creating a new Sec.  190.209 
that describes the contents of the case file for each type of 
enforcement action, including cases involving a notice of amendment 
issued under Sec.  190.206, NOPV issued under Sec.  190.207, corrective 
action order issued under Sec.  190.233, and safety order issued under 
Sec.  190.239. PHMSA is adopting language that explicitly recognizes 
the region recommendation is part of the case file that is available to 
a respondent in all cases. As a result of this new section, PHMSA is 
deleting Sec.  190.213(b), which previously described the contents of 
the file for cases involving an NOPV.
    As to AOPL/API's recommendation that PHMSA provide the Presiding 
Official's recommended decision submitted to the Associate 
Administrator, PHMSA considers that document to be an internal and 
deliberative communication or ``draft decision.'' Consequently, PHMSA 
is not amending the regulations to provide the recommended decision. As 
for the actual and analytical bases for civil penalties, PHMSA notes 
that the violation report, which may be requested in all cases, 
includes the identification of the assessment factors that influence 
the proposed civil penalty in a given case. By reviewing the violation 
report, a respondent will be able to apprehend and respond to those 
factors. In addition, PHMSA currently provides, upon request, a general 
outline of how civil penalties are calculated.

14. Separation of Functions (Sec.  190.210, New Section)

    To implement section 20 of the 2011 Act, PHMSA proposed a new Sec.  
190.210 that explains the separation of functions between enforcement 
personnel, who are involved in the investigation and prosecution of an 
enforcement case, and personnel who make (or assist in making) findings 
and determinations. The section also proposed to prohibit ex parte 
communications in enforcement cases.
    Comments: PHMSA received multiple comments on this proposal. First, 
INGAA suggested that Sec.  190.210(a) should delineate the Presiding 
Official's adjudicative role by specifically providing that, in cases 
where a hearing is held, the Presiding Official will not be engaged in 
any investigative or prosecutorial functions.
    Second, INGAA commented that proposed Sec.  190.210(b) did not 
fully extend the 2011 Act's ex parte provision to attorneys from the 
OCC who prepare recommended decisions in non-hearing cases. INGAA 
suggested a modification to Sec.  190.210(b) that would explicitly 
reference attorneys who prepare such recommended decisions.
    Third, INGAA commented that when rendering a decision in hearing 
cases, the Associate Administrator should consider only the NOPV, the 
operator's response, materials presented at a hearing, the hearing 
transcript, and the recommended decision. Any other communications or 
reports between decisional employees and non-decisional employees would 
impinge on basic due process principles. However, INGAA acknowledged 
that these communications could be allowed in certain instances, 
particularly where respondents are afforded access and an opportunity 
to respond.
    INGAA also suggested that PHMSA should revise the language of the 
ex parte prohibition proposed in Sec.  190.210(b) to include remarks 
concerning a respondent's past conduct or credibility. INGAA proposed 
PHMSA change the proposed ``information that is material to the 
question to be decided in the proceeding material'' to ``the facts, 
evidence, and legal arguments in the proceeding, the merits of the 
case, and the respondent's credibility and past conduct.''
    Lastly, AOPL/API requested that PHMSA emphasize in the regulations, 
including Sec.  190.207(a), that Regional Directors do not serve in an 
advisory capacity for the agency.
    Response: With regard to the first comment, Sec.  190.210(a) is 
broad enough to encompass the role of the Presiding Official in hearing 
cases. In addition, the role of the Presiding Official is more fully 
addressed under Sec.  190.212, which states that the Presiding Official 
may not be engaged in any prosecutorial or investigative functions 
under this subpart. Accordingly, PHMSA believes it is unnecessary to 
explicitly reference the Presiding Official in Sec.  190.210(a).
    In response to INGAA's second comment on ex parte communications, 
PHMSA is amending Sec.  190.210(b) to reference attorneys from the OCC 
who prepare recommended decisions in non-hearing cases. Third, PHMSA is 
amending Sec.  190.208 to include the Regional Director's 
recommendation as part of the case file that will be provided to 
respondents in all cases. This will increase transparency, avoid ex 
parte communications, and promote due process.
    With regard to INGAA's final comment, PHMSA believes it is 
unnecessary to adopt the suggested definition of ex parte 
communications. The language proposed in the NPRM resembles the 
language in the 2011 Act and is broad enough to encompass any 
information that could potentially affect the decision, its evidentiary 
findings, legal rationale, penalty assessments or other determinations. 
Information concerning a respondent's past conduct, to the extent it 
resulted in prior violations, may influence a civil penalty, but that 
information must be contained in the violation report to have any 
bearing in the case.
    Lastly, PHMSA believes the above changes satisfy the comments of 
AOPL/API. The Regional Director's recommendation does not constitute 
advice, but is merely a summary of his or her position on the case 
following receipt of the respondent's evidence and explanations. Such a 
statement of position, whether labeled a recommendation or otherwise, 
is consistent with the Region's enforcement and prosecutorial role. 
Operators will now receive the recommendation in all cases.

15. Hearing--Exchange of Evidentiary Material and Withdrawal (Sec.  
190.211)

    PHMSA proposed a number of amendments to Sec.  190.211 to clarify 
the manner in which informal hearings are conducted. Among the changes, 
the NPRM proposed to amend: Sec.  190.211(b) to state that a respondent 
may withdraw a hearing request in writing and, if permitted by the 
presiding official, supplement the record with a written submission in 
lieu of a hearing; Sec.  190.211(c) to provide that hearings in civil 
penalty cases under $25,000 will be held by telephone conference, 
unless either party requests an in-person hearing; Sec.  190.211(d) to 
clarify that all evidentiary material on which OPS intends to rely at a 
hearing, to the extent possible, must be provided at respondent's 
request prior to a hearing; and Sec.  190.211(e) to state that a 
respondent must submit the material it intends to use to rebut the 
allegation of violation at least 10 calendar days prior to the date of 
the hearing.

[[Page 58902]]

    Comments: AOPL/API objected to the proposed language in Sec.  
190.211(b), which it stated appeared to authorize the Presiding 
Official to prevent a respondent from withdrawing a hearing request.
    With regard to Sec.  190.211(d) and (e), INGAA commented that the 
burden of producing evidentiary material was unfairly tilted toward OPS 
and should be adjusted to allow the respondent an opportunity to review 
and prepare a response to PHMSA's evidentiary material prior to a 
hearing. AOPL/API also objected to the proposed hearing submission 
timelines, allowing OPS to provide case files ``to the extent 
practicable'' but requiring the respondent to submit its materials 10 
days before a hearing. AOPL/API suggested that OPS submit all 
evidentiary material, including the case file, within 30 days of a 
hearing. Under this scenario, in order that respondents can evaluate 
OPS's evidentiary material, the respondent's submission would be due 10 
calendar days prior to a hearing. AGA commented that both parties 
should be required to submit records that they will rely on prior to a 
hearing to ensure a complete and efficient hearing.
    The THLPSCC recommended approval of the NPRM if PHMSA made 
modifications consistent with the comments filed in response to the 
NPRM and principles of: Transparency; completeness/increased formality; 
timeliness/regulatory certainty; and due process. The THLPSCC 
elaborated that ``access and production of relevant information should 
apply equally to PHMSA staff and the respondent.''
    Response: To avoid confusion with regard to Sec.  190.211(b), PHMSA 
is clarifying that a respondent may withdraw a hearing request and 
provide a written response.
    With regard to Sec.  190.211(d) and (e), PHMSA notes that a 
respondent will be able to request the evidentiary material in the case 
(i.e., the violation report) well in advance of a hearing under 
Sec. Sec.  190.208 and 190.209. It is rare that a Region has any 
additional evidentiary material to provide prior to the hearing that is 
not already contained in the violation report. Accordingly, PHMSA 
believes it is unnecessary to adopt the suggestion to require OPS to 
submit its case file and evidentiary material 30 days in advance of a 
hearing. However, to further guarantee that access to, and production 
of, relevant information applies equally to both parties, PHMSA is 
amending Sec.  190.211(d) to provide that both the respondent and OPS 
must submit all evidentiary material 10 days prior to a hearing unless 
the Presiding Official sets a different deadline or waives the deadline 
for good cause. Again, since the violation report is available to the 
respondent soon after receiving an NOPV, there will rarely be any 
additional evidentiary material to be provided by OPS. These changes 
should address the comments regarding fairness and equanimity.

16. Hearing--Formality (Sec.  190.211)

    As part of the clarification and reorganization of Sec.  190.211, 
the NPRM proposed to redesignate Sec.  190.211(d) as Sec.  190.211(f) 
and to clarify that: The hearing is conducted informally; the Presiding 
Official regulates the course of the hearing and gives each party an 
opportunity to participate; and after the evidence has been presented, 
the Presiding Official may permit discussion on the issues under 
consideration.
    Comments: AOPL/API commented that the seriousness of hearing cases 
and the need to compile a detailed and accurate record for potential 
judicial review should require a measure of formality for hearings.
    INGAA proposed that PHMSA should include an option for operators to 
elect a formal hearing before an Administrative Law Judge (ALJ) ``where 
warranted by the size and complexity of the case.'' INGAA acknowledged 
that, while the current hearing process works well for the majority of 
cases, ALJ hearings would advance due process in certain complex cases 
with large civil penalties by further separating the decision maker 
from those performing investigative duties and harmonizing pipeline 
enforcement with hazmat enforcement, which allows for ALJ hearings.
    INGAA also requested that, alternatively, in large or complicated 
hearing cases, the parties be allowed to present oral arguments 
directly to the Associate Administrator during his or her review of a 
recommended decision, rather than having the Associate Administrator 
decide a case solely on the basis of the Presiding Official's 
recommendation.
    Finally, AOPL/API commented that the proposed Sec.  190.211(f) 
states that the Presiding Official ``may'' permit post-evidentiary 
discussion, in contrast to the original regulation that states post-
evidentiary discussion must be permitted.
    Response: PHMSA acknowledges that respondents have an interest in 
proceedings that reflect both the complexity of the case and the amount 
of the civil penalty or corrective action. Despite referring to 
pipeline enforcement hearings as ``informal,'' the hearings actually 
follow a standard process and protocol that protects a respondent's 
rights. The process allows for complete written briefing of the issues 
both before and after the hearing, representation by counsel, 
production of evidence, testimony by witnesses, and cross-examination. 
Respondents may also make arrangements for their hearing to be 
transcribed for the case file. For these reasons, PHMSA believes it is 
unnecessary to adopt additional procedures to make the hearing process 
more formal.
    With regard to the use of ALJ's specifically, PHMSA believes the 
existing process adequately addresses the due process concerns even in 
the most complex cases. Over the years, PHMSA has dealt successfully 
with complex cases involving large civil penalties and amassed 
considerable institutional knowledge in rendering decisions in these 
types of cases. By referring cases to an ALJ, the benefit of the 
informal nature of pipeline hearings would be undermined to the 
detriment of the timely resolution of pipeline safety cases. PHMSA 
declines to adopt INGAA's proposal and will continue to render all 
decisions in hearing cases as set forth in Sec.  190.211.
    As for INGAA's alternate proposal, under which the parties would be 
allowed to present an oral argument directly to the Associate 
Administrator, PHMSA believes the current process already develops a 
full and complete record that is used by the Presiding Official in 
reaching an independent recommended decision. The recommended decision 
summarizes and analyzes the respondent's arguments, and the Associate 
Administrator uses this recommended decision as the basis for issuing a 
final order. In PHMSA's view, adding additional oral arguments directly 
before the Associate Administrator would add little to the parties' 
previous submissions. PHMSA therefore declines to adopt this proposal.
    With regard to Sec.  190.211(f), in response to the comment PHMSA 
is revising the regulation to clarify that the Presiding Official will 
permit reasonable discussion of the issues.

17. Hearing--Transcripts (Sec.  190.211)

    In the proposed Sec.  190.211(g), PHMSA sought to adopt into 
regulation the current practice of permitting respondents to arrange 
for a hearing to be recorded or transcribed at their own cost. The 
paragraph also repeated language in the current regulation that PHMSA 
does not prepare a detailed record of a hearing.

[[Page 58903]]

    Comments: AOPL/API commented that the statement in the regulation 
that PHMSA does not prepare a detailed record of the hearing is 
unnecessary and creates a concern regarding the quality of the record 
maintained by the agency for a potential judicial appeal.
    Response: PHMSA is removing the statement at issue. The case file 
maintained by PHMSA in each enforcement proceeding is now specified in 
Sec.  190.209. The rule also clarifies that a respondent must notify 
PHMSA in advance of its intent to transcribe the hearing. Finally, the 
rule clarifies that a respondent has the sole option of arranging for a 
court reporter to prepare a written transcript of a hearing.

18. Hearing--Recommended Decision (Sec.  190.211)

    As part of the clarification and reorganization of Sec.  190.211, 
the NPRM proposed to redesignate Sec.  190.211(j) as Sec.  190.211(i) 
and to clarify that the Presiding Official's recommended decision is 
forwarded to the Associate Administrator for issuance of a decision and 
order.
    Comments: INGAA stated that this section should include a 
prohibition on sharing drafts between the Presiding Official and any 
Regional Director, PHMSA attorney, or other PHMSA personnel, except as 
needed for technical or engineering clarification. Furthermore, 
reflecting ex parte concerns, this provision should provide that non-
decisional employees may not communicate, comment, or otherwise 
participate with the Presiding Official in drafting a recommended 
decision, which would violate the prohibition on private 
recommendations to the Presiding Official by the Regional Directors.
    AOPL/API commented that this subsection should include a targeted 
timeline for the Presiding Official's recommended decision and proposed 
that the language be further amended to state that the decision will be 
issued within 30 calendar days of the hearing.
    Response: PHMSA believes that the new Sec.  190.210 addresses 
INGAA's comments and, therefore, it would be unnecessary to repeat 
those restrictions in Sec.  190.211. Under the separation of functions 
outlined in Sec.  190.210, PHMSA prohibits the Presiding Official's 
recommended decision to be viewed by, shared with, or otherwise 
commented on by Regional Directors, other PHMSA staff attorneys, or 
other PHMSA employees who are involved in the investigation or 
prosecution of the case.
    PHMSA finds it would be impractical to adopt a 30-day target time 
for issuance of a decision following a hearing. The parties to a 
hearing are generally allotted time following the hearing to submit 
additional information. Until these materials are received, the record 
remains open. Also, hearing cases vary widely in complexity, which 
prevents establishment of a uniform deadline for the issuance of all 
recommended decisions. The internal workload of the agency also varies, 
according to fluctuating caseloads and other priorities. It is 
therefore impractical to establish a fixed date for the issuance of all 
hearing cases. Accordingly, PHMSA declines to adopt this proposal. 
Notwithstanding, PHMSA recognizes the importance of issuing cases in a 
timely manner and has internal processes to manage its caseload.

19. Presiding Official, Powers, and Duties (Sec.  190.212, New Section)

    PHMSA proposed a new Sec.  190.212 that would describe the function 
of the Presiding Official. Among other things, the proposed regulation 
explained that the Presiding Official is an attorney on the staff of 
the Deputy Chief Counsel who is not engaged in any investigative or 
prosecutorial functions, such as the issuance of a notice under this 
subpart. It also explained that if the designated presiding official is 
unavailable, the Deputy Chief Counsel may delegate the powers and 
duties specified in this section to another attorney in the Office of 
Chief Counsel with no prior involvement in the matter to be heard who 
will serve as the presiding official.
    Comments: INGAA and AOPL/API both commented that the proposal to 
permit a substitute presiding official should be consistent with the 
2011 Act, which states that the Presiding Official may not be engaged 
in any investigative or prosecutorial functions. INGAA also stated that 
this section should allow for a respondent to request recusal of the 
Presiding Official.
    Response: Based on the comments, PHMSA is revising Sec.  190.212 to 
state that any substitute Presiding Official may not be engaged in any 
prosecutorial or investigative functions under 49 CFR Part 190. As to 
INGAA's proposal that PHMSA adopt a process for requesting recusal, 
PHMSA declines to adopt a formal process given that it will be rare to 
recuse the Presiding Official. The OCC will, however, deal with any 
potential recusals on a case-by-case basis.

20. Final Order (Sec.  190.213)

    The NPRM proposed several amendments to Sec.  190.213. Among them, 
PHMSA proposed to amend Sec.  190.213(b)(5) and to add Sec.  
190.213(b)(6) to clarify that the recommended decision prepared by the 
Presiding Official (in cases involving a hearing) or the attorney from 
the OCC (in cases not involving a hearing) is forwarded to the 
Associate Administrator for issuance of a final order.
    PHMSA also proposed to remove Sec.  190.213(e), which stated that 
it is the Associate Administrator's policy to issue final orders 
expeditiously and to provide notice to respondents in cases where 
substantial delay is expected.
    Comments: With regard to Sec.  190.213(b), AOPL/API commented that 
the recommended decision submitted by the Presiding Official or 
attorney from the OCC should be made a part of the case file provided 
to the respondent.
    With regard to Sec.  190.213(e), INGAA commented that the rule 
should include a target timeline for the issuance of final orders in 
hearing cases, namely within 180 days of a hearing or closure of the 
record in a non-hearing case. AOPL/API also stated that PHMSA should 
adopt a specific timeline and proposed a 180-day target for issuance of 
a final order. The comments generally expressed concerns with PHMSA's 
lack of timely agency action and the attendant creation of regulatory 
uncertainty and potential hardship to individual operators, 
particularly where facilities have been removed from service.
    Response: For the reasons stated under Sec.  190.209, PHMSA 
declines to specify in the regulation that respondents will receive the 
recommended decision submitted to the Associate Administrator by the 
Presiding Official or attorney from the OCC. PHMSA is clarifying the 
amendment and adopting it at Sec.  190.213(a).
    With regard to establishing timelines for issuance of final orders, 
as explained above, PHMSA has established internal guidelines to ensure 
that enforcement orders are issued in a timely manner. PHMSA will 
continue this approach rather than establishing a fixed deadline in the 
regulations. In response to the comments, PHMSA is withdrawing the 
proposal to delete the existing regulatory language that allows a 
respondent to request notice of the date by which action will be taken 
on an enforcement case whenever there has been a substantial delay. The 
provision is being redesignated as Sec.  190.213(b).

21. Compliance Orders Generally (Sec.  190.217)

    PHMSA proposed to amend Sec.  190.217 to clarify that compliance 
orders may be

[[Page 58904]]

issued for violations of 33 U.S.C. 1321(j) or any regulation or order 
issued thereunder by PHMSA. No comments were received in response to 
this proposal. Accordingly, PHMSA is adopting the amendment as 
proposed.

22. Consent Order (Sec.  190.219)

    PHMSA proposed to amend Sec.  190.219 to provide that PHMSA and a 
respondent may execute a consent agreement for cases involving 
corrective action orders and safety orders, in addition to compliance 
orders. The NPRM also proposed to add Sec.  190.219(c) to require 
notification when resolving a corrective action order in accordance 
with 49 U.S.C. 60112(c).
    Comments: INGAA and AOPL/API requested that PHMSA further expand 
Sec.  190.219 to permit the execution of consent orders in cases 
involving a civil penalty. INGAA also commented that the regulated 
community would benefit from additional guidance on PHMSA's settlement 
process and the issuance of relevant procedures.
    Response: While PHMSA is not precluded from engaging in settlement 
to resolve any enforcement case, including those involving civil 
penalties, it is not the agency's practice to negotiate over civil 
penalty amounts. Therefore, PHMSA is not listing civil penalty cases in 
Sec.  190.219. With regard to settlement guidance, PHMSA is considering 
the request to develop such guidance.

23. Civil Penalties Generally (Sec.  190.221)

    PHMSA proposed to amend Sec.  190.221 to provide that PHMSA may 
assess civil penalties for violations of 33 U.S.C. 1321(j) or any 
regulation or order issued thereunder by PHMSA.
    Comments: AOPL/API commented that PHMSA should clarify that 
penalties assessed under 33 U.S.C. 1321(j) are subject to the limits 
set forth in 33 U.S.C. 1321(b)(6) rather than the limits in 49 U.S.C. 
60122.
    With regard to civil penalties in general, INGAA stated that PHMSA 
should distribute the methodology it uses to calculate civil penalties. 
Through a policy statement, INGAA suggested that PHMSA could bring 
transparency to the process and improve respondent's understanding of 
the general process.
    Response: PHMSA is amending Sec.  190.223 by adding a new paragraph 
(b) that specifies the penalties assessed for violations of 33 U.S.C. 
1321(j) are set forth in 33 U.S.C. 1321(b)(6), as adjusted by 40 CFR 
19.4.
    With regard to civil penalty methodology, PHMSA explains its 
penalty calculation process primarily through the violation report, 
which defines and then applies the statutory penalty assessment factors 
to the alleged facts of the case. Each final order also explains how 
the factors ultimately determined the assessed penalty. In addition, 
PHMSA currently provides, upon request, a general outline of how civil 
penalties are calculated.

24. Maximum Penalties (Sec.  190.223)

    PHMSA proposed to amend Sec.  190.223(a) to clarify that the term 
``civil penalty'' refers to ``administrative'' civil penalties, and to 
increase the maximum penalty from $100,000 to $200,000 for each 
violation, and the maximum penalty for a related series of violations 
from $1,000,000 to $2,000,000, in conformance with the 2011 Act. PHMSA 
also proposed to delete Sec. Sec.  190.223(b), 190.223(c), and 
190.229(b) to remove obsolete civil and criminal penalty provisions for 
violations involving offshore gathering lines.
    Comments: AOPL/API and INGAA requested that PHMSA clarify that the 
new penalty maximums apply only to those violations that occur after 
January 3, 2012, the date of the 2011 Act enactment.
    Response: PHMSA will apply the new maximums only for violations 
that occur after January 3, 2012. PHMSA is deleting Sec. Sec.  
190.223(b) and 190.229(b) as proposed, but is not deleting Sec.  
190.223(c) as that paragraph concerns LNG standards, not offshore 
gathering lines, and was unintentionally proposed to be removed.

25. Assessment Considerations (Sec.  190.225)

    PHMSA proposed to amend Sec.  190.225(a) to remove paragraph (a)(4) 
relating to ``ability to pay'' as a penalty assessment factor to 
conform to the 2011 Act. PHMSA did not receive any comments on this 
proposal. Accordingly, the proposal is adopted.

26. Payment of Penalty (Sec.  190.227)

    PHMSA proposed to amend Sec.  190.227(a) to allow penalties under 
$10,000 to be paid via https://www.pay.gov and to provide the correct 
address. No comments were received in response to this proposal. 
Accordingly, PHMSA is adopting the amendment.

27. Corrective Action Orders (Sec.  190.233)

    The 2011 Act required PHMSA to promulgate regulations ``ensuring 
expedited review'' of any corrective action order (CAO), and defining 
``expedited review.'' In the NPRM, PHMSA proposed that a respondent may 
obtain expedited review, either through a written response or a request 
for a hearing under Sec.  190.211 to be held ``as soon as 
practicable.'' Section 190.233(b) proposed to define expedited review 
as the process for making a prompt determination on whether the order 
should remain in effect or be terminated. According to the proposed 
language, expedited review would be complete upon issuance of a 
determination of whether the order should remain in effect or be 
terminated.
    PHMSA also proposed to amend the existing regulation to provide 
that any hearing under this section would be conducted by the Presiding 
Official in accordance with Sec.  190.211. The NPRM proposed to remove 
language stating that the Presiding Official submits a recommendation 
to the Associate Administrator within 48 hours of the conclusion of a 
hearing to conform to actual practice. Instead, the NPRM proposed that 
the Presiding Official will submit a recommendation ``expeditiously.'' 
Lastly, PHMSA proposed to amend Sec.  190.211(f)(1) to clarify that a 
CAO must include a finding that a facility is or would be hazardous to 
life, property, or the environment.
    Comments: INGAA commented that, commensurate with the need for 
prompt agency action concerning CAOs issued without notice, PHMSA 
should address three timing elements. Specifically, INGAA recommended 
the following specific changes: (1) Retain the 48-hour requirement for 
the Presiding Official to present a recommendation to the Associate 
Administrator as to whether a hazardous condition exists requiring the 
expeditious issuance of a CAO; (2) establish a specific maximum period 
for the Associate Administrator to supersede, uphold, amend, or rescind 
a CAO issued under Sec.  190.233(b); and (3) impose a ``standard of 
promptness'' on the termination of a CAO, especially in those 
circumstances where the CAO imposes a significant reduction to pipeline 
service. In addition, INGAA also requested that PHMSA state in Sec.  
190.233 that it will provide a copy of the case file and CAO data 
report, along with the CAO.
    AOPL/API emphasized the potential for deleterious impacts to 
affected communities and operators from pipeline shutdowns and 
encouraged PHMSA to adopt clear timelines for setting hearing dates and 
rendering decisions on emergency CAOs. AOPL/API proposed that PHMSA 
modify Sec.  190.233 to state that: (1) The agency will hold a hearing 
within 15 calendar days of issuing a CAO, unless the respondent either 
waives this right or

[[Page 58905]]

requests a later hearing date; and (2) the agency will issue a decision 
within 15 calendar days following a hearing, unless it issues a 
``notice showing cause for an extension'' and, after issuing such 
notice, renders a decision within 15 calendar days. AOPL/API questioned 
PHMSA's proposal to remove the 48-hour deadline for the Presiding 
Official to provide a recommendation to the Associate Administrator, 
arguing that the proposal runs counter to the 2011 Act's intent to 
require the issuance of expeditious decisions and industry's preference 
for more definitive timelines. AOPL also commented that the proposed 
regulation did not address the circumstances in which a CAO may be 
amended.
    AGA proposed that PHMSA modify Sec.  190.233 to institute more 
definitive and quantitative timelines following issuance of an 
emergency CAO. Under AGA's proposal, unless the respondent requests a 
later date and demonstrates need, a hearing should be held within 15 
days of issuing a CAO and a decision issued within 15 days of the 
hearing, unless the agency demonstrates a need for the extension and 
provides a later date for issuance of the order.
    Response: PHMSA acknowledges the need to establish promptness in 
the issuance, administration, and hearing of CAOs, particularly when an 
order is issued without prior notice and opportunity for a hearing. 
Existing regulations for the issuance of a CAO without prior notice 
acknowledge the extraordinary nature of such an order by requiring that 
OPS must first make a determination that ``failure to [issue an order] 
would result in the likelihood of serious harm to life, property, or 
the environment.'' This determination is generally only made when OPS 
finds after an accident or incident that a pipeline facility poses a 
risk of serious harm without immediate corrective action measures. 
Following issuance of such an order, the agency provides an operator 
with an opportunity for a prompt hearing and timely decision.
    In PHMSA's experience, the circumstances of each case, including 
the need to coordinate with other Federal agencies and State officials 
and cooperation of the operator in providing information, may vary 
widely. The interplay of these factors influences the amount of time 
needed to schedule a hearing date and to issue a final determination. 
As some of these circumstances are outside of the agency's control, 
PHMSA believes it would be imprudent to establish hard deadlines in the 
regulations. Notwithstanding, in response to the comments, PHMSA is 
adopting a target for hearings regarding CAOs issued without notice to 
be held within 15 days of receipt of the respondent's request, which is 
consistent with PHMSA's internal policy to hold CAO hearings and issue 
decisions in an expeditious manner. Likewise, PHMSA is adopting a 
target for the Presiding Official's post-hearing recommended decision 
to be submitted to the Associate Administrator within five business 
days of the hearing.
    With regard to the comment concerning the case file and CAO data 
report, PHMSA is amending Sec.  190.209 to clarify that a respondent 
may request these materials at any time. Although not previously 
referenced in Part 190, the CAO data report is a preliminary collection 
of facts usually compiled during an OPS investigation of an accident or 
incident, which assists the agency in deciding whether a CAO should be 
issued. The data report, if one is prepared, will be made available as 
part of the case file.
    With regard to the comment concerning amendment of a CAO, PHMSA is 
adopting language in Sec.  190.233(c)(5) to clarify that a CAO may be 
amended as a result of the expedited review. Finally, PHMSA is amending 
Sec.  190.233(c)(2) to clarify that the response period for requesting 
a hearing runs from the respondent's receipt of the notice or order.

28. Safety Orders (Sec.  190.239)

    The NPRM proposed to amend Sec.  190.239 to clarify that an 
operator may petition for reconsideration of a safety order. The 
amendment would also properly format the existing headings of each 
lettered paragraph in the regulation. PHMSA did not receive any 
comments on this proposal and is adopting the amendments.

29. Finality (Sec.  190.241, New Section)

    The NPRM proposed to delete Sec.  190.213(d), which formerly 
defined final orders as final agency action except as provided by Sec.  
190.215. The intended effect of this and a related amendment to Sec.  
190.215 would have required operators to file a petition for 
reconsideration before seeking judicial review.
    Comments: Generally, the commenters opposed this proposal and 
contended that the Administrative Procedure Act (5 U.S.C. 704) requires 
agency action to be considered final unless there is an opportunity for 
review that renders the action inoperable during the agency review.
    INGAA stated that PHMSA should eliminate the mandatory petition 
process and restore petitions for reconsideration as an elective 
process. AOPL/API similarly stated that unless the entirety of an 
administrative order is stayed pending the agency's consideration of 
the petition for reconsideration, the proposed language violates the 
Administrative Procedure Act. AGA commented that, without staying the 
entirety of an order, PHMSA cannot establish the filing of a petition 
for reconsideration as a prerequisite to judicial review. AGA further 
stated that the proposed amendment places a ``double burden'' on 
operators in that it continues to enforce final agency orders while 
barring judicial review until the agency completes its review.
    Response: Having considered the comments, PHMSA is withdrawing the 
proposed amendment. Petitions for reconsideration will remain an 
elective process. For organizational purposes, PHMSA is deleting Sec.  
190.213(d) pertaining to final orders, and is creating a new Sec.  
190.241 to address final agency action in all cases. Under Sec.  
190.241, unless a petition for reconsideration is filed, final 
administrative action occurs upon issuance of an order directing 
amendment issued under Sec.  190.206, a final order issued under Sec.  
190.213, a safety order issued under Sec.  190.239, and a corrective 
action order issued under Sec.  190.233.

30. Petitions for Reconsideration (Sec.  190.243, Redesignated From 
Sec.  190.215)

    The NPRM proposed to amend Sec.  190.215, relating to petitions for 
reconsideration by redesignating the section and by expanding its scope 
to cover final orders, orders directing amendment, safety orders, and 
corrective action orders. It also proposed to allow 30, rather than 20, 
calendar days from service of an order to file a petition for 
reconsideration, and proposed to specify the filing period and standard 
of judicial review under 49 U.S.C. 60119. In addition, as mentioned 
above, the NPRM would have required that a respondent file a petition 
to exhaust its administrative remedies.
    Comments: INGAA proposed that PHMSA adopt three amendments to the 
petition procedures, including: (1) That petitions will be reviewed by 
an individual other than the Associate Administrator and independent of 
his or her line of authority; (2) that the independent reviewer and the 
Associate Administrator be prohibited from communicating about the 
case, including references to the respondent's past conduct or the 
credibility of its witnesses; and (3) that the prohibition

[[Page 58906]]

against repetitious arguments be eliminated. INGAA also argued that 
PHMSA should specifically state that petitions for reconsideration are 
deemed denied if not acted upon within 90 days.
    AOPL/API commented that the proposed paragraphs (c) and (g) would 
conflict, as the former would prohibit a respondent from raising 
repetitious arguments in a petition for reconsideration, and the latter 
would state that failure to raise an issue will deny the respondent the 
ability to raise that issue on appeal.
    Response: For organizational purposes, PHMSA is redesignating this 
regulation at Sec.  190.243. As noted above, PHMSA is withdrawing the 
proposal to require a petition for reconsideration be filed before 
seeking judicial review. PHMSA is also deleting language from the 
regulation that prohibits the Associate Administrator from considering 
repetitious information, arguments, or petitions. PHMSA is removing 
this language to clarify that the Associate Administrator will 
reconsider his or her original decision based on the information and 
arguments presented at the time the petition was filed. PHMSA is also 
amending the regulation to reflect that, when a petition is filed, the 
decision on the petition is the final administrative action.
    PHMSA is also amending the proposed deadline for filing a petition 
for reconsideration. In light of the comments received regarding 
service under Sec.  190.5, PHMSA is amending the regulation to require 
that any petition for reconsideration filed under Sec.  190.243 be 
received within 20 days of the respondent's receipt of the order. This 
is an expansion of the existing regulation, which requires the petition 
to be filed 20 days from service of the order (i.e., when the order is 
mailed). PHMSA believes it is more equitable to base the deadline on 
when the order is received rather than when it was mailed, as suggested 
by the comments discussed under Sec.  190.5.
    With regard to the comment by INGAA that petitions should be 
reviewed by an individual other than the Associate Administrator, PHMSA 
continues to believe the current process is the most appropriate way to 
reconsider a decision. The Associate Administrator is the official most 
familiar with the original order and is in the best position to 
reconsider his or her decision. Accordingly, PHMSA is not adopting the 
suggested change.
    Likewise, PHMSA is not adopting the suggestion to deem all 
petitions denied if not decided within 90 days. While 90 days may be 
reasonable to decide many petitions for reconsideration, other cases 
may require more time to decide. It is the policy of PHMSA to issue 
decisions on reconsideration expeditiously, and PHMSA believes it is in 
everyone's interest to have a reasoned decision rather than an 
automatic denial.
    Finally, PHMSA has reconsidered and is withdrawing the proposal to 
include corrective action orders as an agency action that can be 
petitioned for reconsideration. Due to the fact that corrective action 
must be taken by the respondent as soon as the order is issued to 
address the hazardous condition, most immediate actions will have 
already been completed by the time any petition for reconsideration is 
filed and decided. Moreover, operators may already seek review of a 
corrective action order issued without notice, after which PHMSA will 
issue a decision confirming, amending, or terminating the order. A 
petition for reconsideration of the order would only duplicate the 
review already available under Sec.  190.233.

Subpart C--Criminal Enforcement (New Subpart)

31. Criminal Penalties Generally (Sec.  190.291, Redesignated From 
Sec.  190.229)

    PHMSA proposed to redesignate Subpart C--Procedures for Adoption of 
Rules as Subpart D and to create a new Subpart C--Criminal Enforcement. 
Existing provisions in Subpart B at Sec. Sec.  190.229 and 190.231 were 
proposed to be redesignated to the new Subpart C at Sec. Sec.  190.291 
and 190.293, respectively. No comments were received in response to 
this proposal. Accordingly, PHMSA is implementing the redesignation as 
proposed.

32. Referral for Prosecution (Sec.  190.293, Redesignated From Sec.  
190.231)

    In addition to redesignating Sec.  190.231 as Sec.  190.293, PHMSA 
is also amending Sec.  190.293 to clarify that if a PHMSA employee 
becomes aware of any actual or possible activity subject to criminal 
penalties under Sec.  190.291, the employee reports it to the OCC and 
to his or her supervisor. The Chief Counsel may refer the report to OPS 
for investigation. If appropriate, the Chief Counsel refers the report 
to the Department of Justice for criminal prosecution of the offender.

Subpart D--Procedures for Adoption of Rules (Redesignated From 
Subpart C)

33. Petitions for Extension of Time To Comment (Sec.  190.319)

    The NPRM proposed to redesignate Subpart C--Procedures for Adoption 
of Rules as a new Subpart D and to amend Sec.  190.319 to clarify that 
petitions for extensions of time to file comments on a rulemaking must 
be addressed to PHMSA, as provided in Sec.  190.309. PHMSA did not 
receive any comments to this proposal. Accordingly, PHMSA is adopting 
the proposed changes.

34. Contents of Written Comments (Sec.  190.321)

    The NPRM proposed to remove the requirement in Sec.  190.321 to 
submit multiple copies of a rulemaking comment. PHMSA did not receive 
any comments to this proposal and is adopting the proposed change.

35. Hearings (Sec.  190.327)

    The NPRM proposed to delete the phrase ``under this part'' in Sec.  
190.327(b) and insert ``under this subpart'' to clarify that procedures 
for a hearing held on a notice of proposed rulemaking do not apply to 
other types of hearings in Part 190, such as enforcement hearings. 
PHMSA did not receive any comments on this proposal and is implementing 
this change as proposed.

36. Petitions for Reconsideration (Sec.  190.335)

    The NPRM proposed to amend Sec.  190.335(a) to remove the 
requirement to submit multiple copies of a petition for reconsideration 
of a regulation. PHMSA did not receive any comments on this proposal 
and is adopting the amendment.

37. Proceedings on Petitions for Reconsideration (Sec.  190.337)

    PHMSA proposed to make certain editorial changes to Sec.  
190.337(a) and to remove Sec.  190.337(b), the latter of which stated 
that the Associate Administrator or Chief Counsel issues a notice of 
action taken on a petition for reconsideration of a regulation within 
90 days of the date the regulation is published in the Federal 
Register.
    Comments: INGAA stated that PHMSA should retain the 90-day 
requirement and ``elevate it to a regulatory requirement.''
    Response: In response to the comment, PHMSA is withdrawing the 
proposal to amend Sec.  190.337. PHMSA believes it is unnecessary at 
this time to change the policy to take action on a

[[Page 58907]]

petition for reconsideration within 90 days, unless it is 
impracticable.

38. Appeals (Sec.  190.338)

    The NPRM proposed to delete Sec.  190.338(c) and thereby remove the 
requirement to submit multiple copies of an appeal of a denial issued 
under Sec. Sec.  190.333 or 190.337. PHMSA did not receive any comments 
on this proposal and is adopting the amendment.

39. Special Permits (Sec.  190.341)

    The NPRM proposed to amend Sec.  190.341 to clarify that PHMSA may 
issue an NOPV for a violation of a special permit. The amendment would 
also properly format the headings at the beginning of each lettered 
paragraph. PHMSA did not receive any comments on this proposal and is 
adopting the amendments.

Amendments to Parts 192-199

40. General Provisions (Sec.  192.603)

    The NPRM proposed to amend Sec.  192.603(c) by replacing the 
reference to Sec.  190.237 related to notices of amendment with Sec.  
190.206 to reflect the redesignation of that regulation. PHMSA did not 
receive any comments and is adopting the amendment.

41. Plans and Procedures (Sec.  193.2017)

    The NPRM proposed to amend Sec.  193.2017(b) by replacing the 
reference to Sec.  190.237 related to notices of amendment with Sec.  
190.206 to reflect the redesignation of that regulation. PHMSA did not 
receive any comments and is adopting the amendment.

42. Procedural Manual for Operations, Maintenance, and Emergencies 
(Sec.  195.402)

    The NPRM proposed to amend Sec.  195.402(b) by replacing the 
reference to Sec.  190.237 related to notices of amendment with Sec.  
190.206 to reflect the redesignation of that regulation. PHMSA did not 
receive any comments and is adopting the amendment.

43. Anti-Drug Plan (Sec.  199.101)

    The NPRM proposed to amend Sec.  199.101(b) by replacing the 
reference to Sec.  190.237 related to notices of amendment with Sec.  
190.206 to reflect the redesignation of that regulation. PHMSA did not 
receive any comments and is adopting the amendment.

Regulatory Analyses and Notices

Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866 (58 FR 51735) and, therefore, was not reviewed 
by the Office of Management and Budget. This rule is not significant 
under the Regulatory Policies and Procedures of the Department of 
Transportation (44 FR 11034).
    Executive Orders 12866 and 13563 require agencies to regulate in 
the ``most cost-effective manner,'' to make a ``reasoned determination 
that the benefits of the intended regulation justify its costs,'' and 
to develop regulations that ``impose the least burden on society.'' 
PHMSA amended miscellaneous provisions to conform to actual agency 
practice, make certain corrections to various provisions, and implement 
mandates from the 2011 Act. PHMSA anticipates the amendments contained 
in this rule will have no economic impact on the regulated community.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), PHMSA 
must consider whether rulemaking actions would have a significant 
economic impact on a substantial number of small entities.
    Description of the reasons that action by PHMSA was taken. The 2011 
Act required PHMSA to issue regulations implementing certain statutory 
mandates involving the Presiding Official, the agency's enforcement 
practices and procedures, and various other provisions. PHMSA proposed 
various corrections in order to resolve inconsistencies and errors 
throughout Part 190.
    Succinct statement of the objectives of, and legal basis for, the 
rule. Under the pipeline safety laws, 49 U.S.C. 60101 et seq., the 
Secretary of Transportation must prescribe minimum safety standards for 
pipeline transportation and for pipeline facilities. The Secretary has 
delegated this authority to the PHMSA Administrator. The rule would 
implement statutory mandates and make certain other amendments and 
corrections that improve the agency's administrative enforcement 
procedures.
    Description of small entities to which the rule will apply. In 
general, the rule will apply to pipeline operators, some of which may 
qualify as a small business as defined in section 601(3) of the 
Regulatory Flexibility Act. Some pipelines are operated by 
jurisdictions with a population of less than 50,000 people, and thus 
qualify as small governmental jurisdictions.
    Description of the projected reporting, recordkeeping, and other 
compliance requirements of the rule, including an estimate of the 
classes of small entities that will be subject to the rule, and the 
type of professional skills necessary for preparation of the report or 
record. The rule does not impose any new reporting or recordkeeping 
requirement. However, it affects the timing of certain submissions that 
must be submitted under the existing regulations. For example, the rule 
requires operators to respond to an RSI within 30 days. Prior to this, 
the regulation required operators to respond within 45 days of 
receiving such a request. Because operators must currently respond to 
RSIs, the rule does not impose any additional reporting requirements.
    Identification, to the extent practicable, of all relevant Federal 
rules that may duplicate, overlap, or conflict with the rule. PHMSA is 
unaware of any duplicative, overlapping, or conflicting Federal rules.
    Description of any significant alternatives to the rule that 
accomplish the stated objectives of applicable statutes and that 
minimize any significant economic impact of the rule on small entities, 
including alternatives considered. PHMSA is unaware of any alternatives 
that would implement the required statutory mandates and other 
necessary regulatory amendments. Since the rule only implicates PHMSA's 
administrative enforcement processes, and is specifically designed to 
eliminate inconsistencies for regulated entities, no alternatives would 
result in smaller economic impacts on small entities while at the same 
time meeting the objectives of the 2011 Act and the agency's need for a 
consistent and efficient administrative enforcement process.

Executive Order 13175

    PHMSA has analyzed this rule according to the principles and 
criteria in Executive Order 13175, ``Consultation and Coordination with 
Indian Tribal Governments.'' Because this rule does not significantly 
or uniquely affect the communities of the Indian tribal governments or 
impose substantial direct compliance costs, the funding and 
consultation requirements of Executive Order 13175 do not apply.

Paperwork Reduction Act

    This rule imposes no new requirements for recordkeeping and 
reporting.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It would not result in costs of $100 
million, adjusted for inflation, or more in any

[[Page 58908]]

one year to either state, local, or tribal governments, in the 
aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

National Environmental Policy Act

    The National Environmental Policy Act (42 U.S.C. 4321-4375) 
requires that Federal agencies analyze final actions to determine 
whether those actions will have a significant impact on the human 
environment. The Council on Environmental Quality regulations requires 
Federal agencies to conduct an environmental review considering (1) the 
need for the final action; (2) alternatives to the final action; (3) 
probable environmental impacts of the final action and alternatives; 
and (4) the agencies and persons consulted during the consideration 
process. 40 CFR 1508.9(b).
    1. Purpose and Need. PHMSA is making non-substantive amendments and 
editorial changes to the pipeline safety regulations. These include:
     Increasing the maximum penalties for violations to 
$200,000 per violation per day of violation with a maximum of 
$2,000,000 for a related series of violations;
     Amending the existing definition of ``presiding official'' 
and adding a new section concerning the presiding official's powers and 
duties;
     Permitting a respondent to arrange for a hearing to be 
transcribed at their cost and requiring them to submit a copy of the 
transcript;
     Implementing a separation of functions between employees 
involved with the investigation and prosecution of an enforcement case 
and those involved in deciding the case;
     Prohibiting ex-parte communications during the formal 
hearing process;
     Defining the term ``expedited review'' for reviewing CAOs; 
and
     Making other technical corrections and updates to address 
miscellaneous errors and omissions.
    2. Alternatives. In developing the rule, PHMSA considered two 
alternatives:
     Alternative 1: Implement statutory mandates. PHMSA has an 
unqualified obligation to implement the statutory mandates of the 2011 
Act. The changes in this rule serve that purpose by amending the 
pipeline safety regulations in accordance with the 2011 Act.
     Alternative 2: Revise the pipeline safety regulations to 
incorporate the statutory mandates, other amendments and minor 
editorial changes previously discussed. PHMSA made certain amendments, 
corrections and editorial changes to the pipeline safety regulations. 
These revisions would eliminate inconsistencies and conform to the 
agency's existing practices.
    3. Analysis of Environmental Impacts. We did not receive any 
comments to the proposed finding in the NPRM that the proposed non-
substantive changes would have little or no impact on the human 
environment. The final amendments are not substantive in nature and 
would have little or no impact on the human environment.
    PHMSA has concluded that neither of the alternatives discussed 
above would result in any significant impacts on the environment.

Privacy Act Statement

    Anyone may search the electronic form of all comments received for 
any of our dockets. You may review DOT's complete Privacy Act Statement 
published in the Federal Register on April 11, 2000 (70 FR 19477), or 
visit https://dms.dot.gov.

Executive Order 13132

    PHMSA has analyzed this rule according to Executive Order 13132 
(``Federalism''). The rule does not have a substantial direct effect on 
the states, the relationship between the national government and the 
states, or the distribution of power and responsibilities among the 
various levels of government. This rule does not impose substantial 
direct compliance costs on state and local governments. This rule does 
not preempt state law for intrastate pipelines. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.

Executive Order 13211

    This rule is not a ``significant energy action'' under Executive 
Order 13211 (``Actions Concerning Regulations that Significantly Affect 
Energy Supply, Distribution, or Use''). It is not likely to have a 
significant adverse effect on supply, distribution, or energy use. 
Further, the Office of Information and Regulatory Affairs has not 
designated this rule as a significant energy action.

List of Subjects

49 CFR Part 190

    Administrative practice and procedure, Penalties.

49 CFR Part 192

    Pipeline safety, Fire prevention, Security measures.

49 CFR Part 193

    Pipeline safety, Fire prevention, Security measures.

 49 CFR Part 195

    Ammonia, Carbon dioxide, Petroleum, Pipeline safety, Reporting and 
record-keeping requirements.

49 CFR Part 199

    Alcohol abuse, Drug testing.

    For the reasons set forth in the preamble, PHMSA amends 49 CFR 
chapter I, subchapter D as follows:

PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES

0
1. The authority citation for Part 190 is revised to read as follows:

    Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.; 49 CFR 
1.96.


0
2. The heading of Part 190 is revised to read as set forth above.

PART 190--[AMENDED]

0
3. In Part 190, revise all references to ``Administrator, PHMSA'' to 
read ``Administrator''.
0
4. In Part 190, revise all references to ``Chief Counsel, PHMSA'' to 
read ``Chief Counsel''.
0
5. In Part 190, revise all references to ``Associate Administrator, 
OPS'' to read ``Associate Administrator''.


Sec.  190.1  [Amended]

0
6. In Sec.  190.1, paragraph (a) is amended by removing the phrase ``49 
U.S.C. 5101 et seq. (the hazardous material transportation laws)'' and 
adding in its place ``33 U.S.C. 1321 (the water pollution control 
laws)''.
0
7. In Sec.  190.3, the definitions of ``Presiding Official'' and 
``Respondent'' are revised and new definitions for ``Associate 
Administrator,'' ``Chief Counsel,'' ``Day,'' and ``Operator'' are added 
in alphabetical order to read as follows:


Sec.  190.3  Definitions.

* * * * *
    Associate Administrator means the Associate Administrator for 
Pipeline Safety, or his or her delegate.
    Chief Counsel means the Chief Counsel of PHMSA.
    Day means a 24-hour period ending at 11:59 p.m. Unless otherwise 
specified, a day refers to a calendar day.
* * * * *
    Operator means any owner or operator.
* * * * *
    Presiding Official means the person who conducts any hearing 
relating to civil penalty assessments, compliance orders, orders 
directing amendment, safety orders, or corrective action orders

[[Page 58909]]

and who has the duties and powers set forth in Sec.  190.212.
* * * * *
    Respondent means a person upon whom OPS has served an enforcement 
action described in this part.
* * * * *

0
8. In Sec.  190.5, paragraphs (a) and (c) are revised to read as 
follows:


Sec.  190.5  Service.

    (a) Each order, notice, or other document required to be served 
under this part will be served personally, by certified mail, overnight 
courier, or electronic transmission by facsimile or other electronic 
means that includes reliable acknowledgement of actual receipt.
* * * * *
    (c) Service by certified mail or overnight courier is complete upon 
mailing. Service by electronic transmission is complete upon 
transmission and acknowledgement of receipt. An official receipt for 
the mailing from the U.S. Postal Service or overnight courier, or a 
facsimile or other electronic transmission confirmation, constitutes 
prima facie evidence of service.

0
9. In Sec.  190.7, paragraphs (a), (c), (d), and (e) are revised to 
read as follows:


Sec.  190.7  Subpoenas; witness fees.

    (a) The Administrator, Chief Counsel, or the official designated by 
the Administrator to preside over a hearing convened in accordance with 
this part, may sign and issue subpoenas individually on his or her own 
initiative at any time, including pursuant to an inspection or 
investigation, or upon request and adequate showing by a participant to 
an enforcement proceeding that the information sought will materially 
advance the proceeding.
* * * * *
    (c) A subpoena may be served personally by any person who is not an 
interested person and is not less than 18 years of age, or by certified 
mail.
    (d) Service of a subpoena upon the person named in the subpoena is 
achieved by delivering a copy of the subpoena to the person and by 
paying the fees for one day's attendance and mileage, as specified by 
paragraph (g) of this section. When a subpoena is issued at the 
instance of any officer or agency of the United States, fees and 
mileage need not be tendered at the time of service. Delivery of a copy 
of a subpoena and tender of the fees to a natural person may be made by 
handing them to the person, leaving them at the person's office with a 
person in charge, leaving them at the person's residence with a person 
of suitable age and discretion residing there, by mailing them by 
certified mail to the person at the last known address, or by any 
method whereby actual notice is given to the person and the fees are 
made available prior to the return date.
    (e) When the person to be served is not a natural person, delivery 
of a copy of the subpoena and tender of the fees may be achieved by 
handing them to a designated agent or representative for service, or to 
any officer, director, or agent in charge of any office of the person, 
or by mailing them by certified mail to that agent or representative 
and the fees are made available prior to the return date.
* * * * *

0
10. Section 190.11 is revised to read as follows:


Sec.  190.11  Availability of informal guidance and interpretive 
assistance.

    (a) Availability of telephonic and Internet assistance. PHMSA has 
established a Web site and a telephone line to OPS headquarters where 
information on and advice about compliance with the pipeline safety 
regulations specified in 49 CFR parts 190-199 is available. The Web 
site and telephone line are staffed by personnel from PHMSA's OPS from 
9:00 a.m. through 5:00 p.m., Eastern Time, Monday through Friday, with 
the exception of Federal holidays. When the lines are not staffed, 
individuals may leave a recorded voicemail message or post a message on 
the OPS Web site. The telephone number for the OPS information line is 
(202) 366-4595 and the OPS Web site can be accessed via the Internet at 
https://phmsa.dot.gov/pipeline.
    (b) Availability of written interpretations. A written regulatory 
interpretation, response to a question, or an opinion concerning a 
pipeline safety issue may be obtained by submitting a written request 
to the Office of Pipeline Safety (PHP-30), PHMSA, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. 
The requestor must include his or her return address and should also 
include a daytime telephone number. Written requests should be 
submitted at least 120 days before the time the requestor needs a 
response.

0
11. In Sec.  190.201, paragraph (a) is revised to read as follows:


Sec.  190.201  Purpose and scope.

    (a) This subpart describes the enforcement authority and sanctions 
exercised by the Associate Administrator for achieving and maintaining 
pipeline safety and compliance under 49 U.S.C. 60101 et seq., 33 U.S.C. 
1321(j), and any regulation or order issued thereunder. It also 
prescribes the procedures governing the exercise of that authority and 
the imposition of those sanctions.
* * * * *

0
12. In Sec.  190.203, paragraph (b)(6) and paragraphs (c), (e), and (f) 
are revised to read as follows:


Sec.  190.203  Inspections and investigations.

* * * * *
    (b) * * *
    (6) Whenever deemed appropriate by the Associate Administrator.
    (c) If the Associate Administrator or Regional Director believes 
that further information is needed to determine appropriate action, the 
Associate Administrator or Regional Director may notify the pipeline 
operator in writing that the operator is required to provide specific 
information within 30 days from the time the notification is received 
by the operator, unless otherwise specified in the notification. The 
notification must provide a reasonable description of the specific 
information required. An operator may request an extension of time to 
respond by providing a written justification as to why such an 
extension is necessary and proposing an alternative submission date. A 
request for an extension may ask for the deadline to be stayed while 
the extension is considered. General statements of hardship are not 
acceptable bases for requesting an extension.
* * * * *
    (e) If a representative of the U.S. Department of Transportation 
inspects or investigates an accident or incident involving a pipeline 
facility, the operator must make available to the representative all 
records and information that pertain to the event in any way, including 
integrity management plans and test results. The operator must provide 
all reasonable assistance in the investigation. Any person who 
obstructs an inspection or investigation by taking actions that were 
known or reasonably should have been known to prevent, hinder, or 
impede an investigation without good cause will be subject to 
administrative civil penalties under this subpart.
    (f) When OPS determines that the information obtained from an 
inspection or from other appropriate sources warrants further action, 
OPS may initiate one or more of the enforcement proceedings prescribed 
in this subpart.

0
13. Section 190.205 is revised to read as follows:

[[Page 58910]]

Sec.  190.205  Warnings.

    Upon determining that a probable violation of 49 U.S.C. 60101 et 
seq., 33 U.S.C. 1321(j), or any regulation or order issued thereunder 
has occurred, the Associate Administrator or a Regional Director may 
issue a written warning notifying the operator of the probable 
violation and advising the operator to correct it or be subject to 
potential enforcement action in the future. The operator may submit a 
response to a warning, but is not required to. An adjudication under 
this subpart to determine whether a violation occurred is not conducted 
for warnings.

0
14. Add Sec.  190.206 to Subpart B to read as follows:


Sec.  190.206  Amendment of plans or procedures.

    (a) A Regional Director begins a proceeding to determine whether an 
operator's plans or procedures required under parts 192, 193, 195, and 
199 of this subchapter are inadequate to assure safe operation of a 
pipeline facility by issuing a notice of amendment. The notice will 
specify the alleged inadequacies and the proposed revisions of the 
plans or procedures and provide an opportunity to respond. The notice 
will allow the operator 30 days following receipt of the notice to 
submit written comments, revised procedures, or a request for a hearing 
under Sec.  190.211.
    (b) After considering all material presented in writing or at the 
hearing, if applicable, the Associate Administrator determines whether 
the plans or procedures are inadequate as alleged. The Associate 
Administrator issues an order directing amendment of the plans or 
procedures if they are inadequate, or withdraws the notice if they are 
not. In determining the adequacy of an operator's plans or procedures, 
the Associate Administrator may consider:
    (1) Relevant pipeline safety data;
    (2) Whether the plans or procedures are appropriate for the 
particular type of pipeline transportation or facility, and for the 
location of the facility;
    (3) The reasonableness of the plans or procedures; and
    (4) The extent to which the plans or procedures contribute to 
public safety.
    (c) An order directing amendment of an operator's plans or 
procedures prescribed in this section may be in addition to, or in 
conjunction with, other appropriate enforcement actions prescribed in 
this subpart.

0
15. In Sec.  190.207, revise paragraphs (a), (b)(2), and (c) to read as 
follows:


Sec.  190.207  Notice of probable violation.

    (a) Except as otherwise provided by this subpart, a Regional 
Director begins an enforcement proceeding by serving a notice of 
probable violation on a person charging that person with a probable 
violation of 49 U.S.C. 60101 et seq., 33 U.S.C. 1321(j), or any 
regulation or order issued thereunder.
    (b) * * *
    (2) Notice of response options available to the respondent under 
Sec.  190.208;
* * * * *
    (c) The Regional Director may amend a notice of probable violation 
at any time prior to issuance of a final order under Sec.  190.213. If 
an amendment includes any new material allegations of fact, proposes an 
increased civil penalty amount, or proposes new or additional remedial 
action under Sec.  190.217, the respondent will have the opportunity to 
respond under Sec.  190.208.

0
16. Add Sec.  190.208 to Subpart B to read as follows:


Sec.  190.208  Response options.

    Within 30 days of receipt of a notice of probable violation, the 
respondent must answer the Regional Director who issued the notice in 
the following manner:
    (a) When the notice contains a proposed civil penalty--
    (1) If the respondent is not contesting an allegation of probable 
violation, pay the proposed civil penalty as provided in Sec.  190.227 
and advise the Regional Director of the payment. The payment authorizes 
the Associate Administrator to make a finding of violation and to issue 
a final order under Sec.  190.213;
    (2) If the respondent is not contesting an allegation of probable 
violation but wishes to submit a written explanation, information, or 
other materials the respondent believes may warrant mitigation or 
elimination of the proposed civil penalty, the respondent may submit 
such materials. This authorizes the Associate Administrator to make a 
finding of violation and to issue a final order under Sec.  190.213;
    (3) If the respondent is contesting one or more allegations of 
probable violation but is not requesting a hearing under Sec.  190.211, 
the respondent may submit a written response in answer to the 
allegations; or
    (4) The respondent may request a hearing under Sec.  190.211.
    (b) When the notice contains a proposed compliance order--
    (1) If the respondent is not contesting an allegation of probable 
violation, agree to the proposed compliance order. This authorizes the 
Associate Administrator to make a finding of violation and to issue a 
final order under Sec.  190.213;
    (2) Request the execution of a consent order under Sec.  190.219;
    (3) If the respondent is contesting one or more of the allegations 
of probable violation or compliance terms, but is not requesting a 
hearing under Sec.  190.211, the respondent may object to the proposed 
compliance order and submit written explanations, information, or other 
materials in answer to the allegations in the notice of probable 
violation; or
    (4) The respondent may request a hearing under Sec.  190.211.
    (c) Before or after responding in accordance with paragraph (a) of 
this section or, when applicable paragraph (b) of this section, the 
respondent may request a copy of the violation report from the Regional 
Director as set forth in Sec.  190.209. The Regional Director will 
provide the violation report to the respondent within five business 
days of receiving a request.
    (d) Failure to respond in accordance with paragraph (a) of this 
section or, when applicable paragraph (b) of this section, constitutes 
a waiver of the right to contest the allegations in the notice of 
probable violation and authorizes the Associate Administrator, without 
further notice to the respondent, to find the facts as alleged in the 
notice of probable violation and to issue a final order under Sec.  
190.213.
    (e) All materials submitted by operators in response to enforcement 
actions may be placed on publicly accessible Web sites. A respondent 
seeking confidential treatment under 5 U.S.C. 552(b) for any portion of 
its responsive materials must provide a second copy of such materials 
along with the complete original document. A respondent may redact the 
portions it believes qualify for confidential treatment in the second 
copy but must provide a written explanation for each redaction.

0
17. Section 190.209 is revised to read as follows:


Sec.  190.209  Case file.

    (a) The case file, as defined in this section, is available to the 
respondent in all enforcement proceedings conducted under this subpart.
    (b) The case file of an enforcement proceeding consists of the 
following:
    (1) In cases commenced under Sec.  190.206, the notice of amendment 
and the relevant procedures;
    (2) In cases commenced under Sec.  190.207, the notice of probable 
violation and the violation report;
    (3) In cases commenced under Sec.  190.233, the corrective action 
order or

[[Page 58911]]

notice of proposed corrective action order and the data report, if one 
is prepared;
    (4) In cases commenced under Sec.  190.239, the notice of proposed 
safety order;
    (5) Any documents and other material submitted by the respondent in 
response to the enforcement action;
    (6) In cases involving a hearing, any material submitted during and 
after the hearing as set forth in Sec.  190.211; and
    (7) The Regional Director's written evaluation of response material 
submitted by the respondent and recommendation for final action, if one 
is prepared.

0
18. Add Sec.  190.210 to Subpart B to read as follows:


Sec.  190.210  Separation of functions.

    (a) General. An agency employee who assists in the investigation or 
prosecution of an enforcement case may not participate in the decision 
of that case or a factually related one, but may participate as a 
witness or counsel at a hearing as set forth in this subpart. Likewise, 
an agency employee who prepares a decision in an enforcement case may 
not have served in an investigative or prosecutorial capacity in that 
case or a factually related one.
    (b) Prohibition on ex parte communications. A party to an 
enforcement proceeding, including the respondent, its representative, 
or an agency employee having served in an investigative or 
prosecutorial capacity in the proceeding, may not communicate privately 
with the Associate Administrator, Presiding Official, or attorney 
drafting the recommended decision concerning information that is 
relevant to the questions to be decided in the proceeding. A party may 
communicate with the Presiding Official regarding administrative or 
procedural issues, such as for scheduling a hearing.

0
19. Section 190.211 is revised to read as follows:


Sec.  190.211  Hearing.

    (a) General. This section applies to hearings conducted under this 
part relating to civil penalty assessments, compliance orders, orders 
directing amendment, safety orders, and corrective action orders. The 
Presiding Official will convene hearings conducted under this section.
    (b) Hearing request and statement of issues. A request for a 
hearing must be accompanied by a statement of the issues that the 
respondent intends to raise at the hearing. The issues may relate to 
the allegations in the notice, the proposed corrective action, or the 
proposed civil penalty amount. A respondent's failure to specify an 
issue may result in waiver of the respondent's right to raise that 
issue at the hearing. The respondent's request must also indicate 
whether or not the respondent will be represented by counsel at the 
hearing. The respondent may withdraw a request for a hearing in writing 
and provide a written response.
    (c) Telephonic and in-person hearings. A telephone hearing will be 
held if the amount of the proposed civil penalty or the cost of the 
proposed corrective action is less than $25,000, unless the respondent 
or OPS submits a written request for an in-person hearing. In-person 
hearings will normally be held at the office of the appropriate OPS 
Region. Hearings may be held by video teleconference if the necessary 
equipment is available to all parties.
    (d) Pre-hearing submissions. If OPS or the respondent intends to 
introduce material, including records, documents, and other exhibits 
not already in the case file, the material must be submitted to the 
Presiding Official and the other party at least 10 days prior to the 
date of the hearing, unless the Presiding Official sets a different 
deadline or waives the deadline for good cause.
    (e) Conduct of the hearing. The hearing is conducted informally 
without strict adherence to rules of evidence. The Presiding Official 
regulates the course of the hearing and gives each party an opportunity 
to offer facts, statements, explanations, documents, testimony or other 
evidence that is relevant and material to the issues under 
consideration. The parties may call witnesses on their own behalf and 
examine the evidence and witnesses presented by the other party. After 
the evidence in the case has been presented, the Presiding Official 
will permit reasonable discussion of the issues under consideration.
    (f) Written transcripts. If a respondent elects to transcribe a 
hearing, the respondent must make arrangements with a court reporter at 
cost to the respondent and submit a complete copy of the transcript for 
the case file. The respondent must notify the Presiding Official in 
advance if it intends to transcribe a hearing.
    (g) Post-hearing submission. The respondent and OPS may request an 
opportunity to submit further written material after the hearing for 
inclusion in the record. The Presiding Official will allow a reasonable 
time for the submission of the material and will specify the submission 
date. If the material is not submitted within the time prescribed, the 
case will proceed to final action without the material.
    (h) Preparation of decision. After consideration of the case file, 
the Presiding Official prepares a recommended decision in the case, 
which is then forwarded to the Associate Administrator for issuance of 
a final order.

0
20. Add Sec.  190.212 to Subpart B to read as follows:


Sec.  190.212  Presiding official, powers, and duties.

    (a) General. The Presiding Official for a hearing conducted under 
Sec.  190.211 is an attorney on the staff of the Deputy Chief Counsel 
who is not engaged in any investigative or prosecutorial functions, 
such as the issuance of notices under this subpart. If the designated 
Presiding Official is unavailable, the Deputy Chief Counsel may 
delegate the powers and duties specified in this section to another 
attorney in the Office of Chief Counsel who is not engaged in any 
investigative or prosecutorial functions under this subpart.
    (b) Time and place of the hearing. The Presiding Official will set 
the date, time and location of the hearing. To the extent practicable, 
the Presiding Official will accommodate the parties' schedules when 
setting the hearing. Reasonable notice of the hearing will be provided 
to all parties.
    (c) Powers and duties of Presiding Official. The Presiding Official 
will conduct a fair and impartial hearing and take all action necessary 
to avoid delay in the disposition of the proceeding and maintain order. 
The Presiding Official has all powers necessary to achieve those ends, 
including, but not limited to the power to:
    (1) Regulate the course of the hearing and conduct of the parties 
and their counsel;
    (2) Receive evidence and inquire into the relevant and material 
facts;
    (3) Require the submission of documents and other information;
    (4) Direct that documents or briefs relate to issues raised during 
the course of the hearing;
    (5) Set the date for filing documents, briefs, and other items;
    (6) Prepare a recommended decision; and
    (7) Exercise the authority necessary to carry out the 
responsibilities of the Presiding Official under this subpart.

0
21. Section 190.213 is revised to read as follows:


Sec.  190.213  Final order.

    (a) In an enforcement proceeding commenced under Sec.  190.207, an 
attorney from the Office of Chief Counsel prepares a recommended

[[Page 58912]]

decision after expiration of the 30-day response period prescribed in 
Sec.  190.208. If a hearing is held, the Presiding Official prepares 
the recommended decision as set forth in Sec.  190.211. The recommended 
decision is forwarded to the Associate Administrator who considers the 
case file and issues a final order. The final order includes--
    (1) A statement of findings and determinations on all material 
issues, including a determination as to whether each alleged violation 
has been proved;
    (2) If a civil penalty is assessed, the amount of the penalty and 
the procedures for payment of the penalty, provided that the assessed 
civil penalty may not exceed the penalty proposed in the notice of 
probable violation; and
    (3) If a compliance order is issued, a statement of the actions 
required to be taken by the respondent and the time by which such 
actions must be accomplished.
    (b) In cases where a substantial delay is expected in the issuance 
of a final order, notice of that fact and the date by which it is 
expected that action will be taken is provided to the respondent upon 
request and whenever practicable.


Sec.  190.215  [Removed and Reserved]

0
22. Remove and reserve Sec.  190.215.

0
23. Section 190.217 is revised to read as follows:


Sec.  190.217  Compliance orders generally.

    When a Regional Director has reason to believe that a person is 
engaging in conduct that violates 49 U.S.C. 60101 et seq., 33 U.S.C. 
1321(j), or any regulation or order issued thereunder, and if the 
nature of the violation and the public interest so warrant, the 
Regional Director may initiate proceedings under Sec. Sec.  190.207 
through 190.213 to determine the nature and extent of the violations 
and for the issuance of an order directing compliance.

0
24. In Sec.  190.219, paragraph (a) is revised and paragraph (c) is 
added to read as follows:


Sec.  190.219  Consent order.

    (a) At any time prior to the issuance of a compliance order under 
Sec.  190.217, a corrective action order under Sec.  190.233, or a 
safety order under Sec.  190.239, the Regional Director and the 
respondent may agree to resolve the case by execution of a consent 
agreement and order, which may be jointly executed by the parties and 
issued by the Associate Administrator. Upon execution, the consent 
order is considered a final order under Sec.  190.213.
* * * * *
    (c) Prior to the execution of a consent agreement and order arising 
out of a corrective action order under Sec.  190.233, the Associate 
Administrator will notify any appropriate State official in accordance 
with 49 U.S.C. 60112(c).

0
25. Section 190.221 is revised to read as follows:


Sec.  190.221  Civil penalties generally.

    When a Regional Director has reason to believe that a person has 
committed an act violating 49 U.S.C. 60101 et seq., 33 U.S.C. 1321(j), 
or any regulation or order issued thereunder, the Regional Director may 
initiate proceedings under Sec. Sec.  190.207 through 190.213 to 
determine the nature and extent of the violations and appropriate civil 
penalty.

0
26. Section 190.223 is revised to read as follows:


Sec.  190.223  Maximum penalties.

    (a) Any person who is determined to have violated a provision of 49 
U.S.C. 60101 et seq., or any regulation or order issued thereunder is 
subject to an administrative civil penalty not to exceed $200,000 for 
each violation for each day the violation continues, except that the 
maximum administrative civil penalty may not exceed $2,000,000 for any 
related series of violations.
    (b) Any person who is determined to have violated a provision of 33 
U.S.C. 1321(j) or any regulation or order issued thereunder is subject 
to an administrative civil penalty under 33 U.S.C. 1321(b)(6), as 
adjusted by 40 CFR 19.4.
    (c) Any person who is determined to have violated any standard or 
order under 49 U.S.C. 60103 is subject to an administrative civil 
penalty not to exceed $50,000, which may be in addition to other 
penalties to which such person may be subject under paragraph (a) of 
this section.
    (d) Any person who is determined to have violated any standard or 
order under 49 U.S.C. 60129 is subject to an administrative civil 
penalty not to exceed $1,000, which may be in addition to other 
penalties to which such person may be subject under paragraph (a) of 
this section.
    (e) Separate penalties for violating a regulation prescribed under 
this subchapter and for violating an order issued under Sec. Sec.  
190.206, 190.213, 190.233, or 190.239 may not be imposed under this 
section if both violations are based on the same act.

0
27. Section 190.225 is revised to read as follows:


Sec.  190.225  Assessment considerations.

    In determining the amount of a civil penalty under this part,
    (a) The Associate Administrator will consider:
    (1) The nature, circumstances and gravity of the violation, 
including adverse impact on the environment;
    (2) The degree of the respondent's culpability;
    (3) The respondent's history of prior offenses;
    (4) Any good faith by the respondent in attempting to achieve 
compliance;
    (5) The effect on the respondent's ability to continue in business; 
and
    (b) The Associate Administrator may consider:
    (1) The economic benefit gained from violation, if readily 
ascertainable, without any reduction because of subsequent damages; and
    (2) Such other matters as justice may require.

0
28. In Sec.  190.227, paragraph (a) is revised to read as follows:


Sec.  190.227  Payment of penalty.

    (a) Except for payments exceeding $10,000, payment of a civil 
penalty proposed or assessed under this subpart may be made by 
certified check or money order (containing the CPF Number for the 
case), payable to ``U.S. Department of Transportation,'' to the Federal 
Aviation Administration, Mike Monroney Aeronautical Center, Financial 
Operations Division (AMZ-341), P.O. Box 25770, Oklahoma City, OK 73125, 
or by wire transfer through the Federal Reserve Communications System 
(Fedwire) to the account of the U.S. Treasury, or via https://www.pay.gov. Payments exceeding $10,000 must be made by wire transfer.
* * * * *

Subpart B [Amended]

0
29. In Subpart B, remove the undesignated center heading ``Criminal 
Penalties''.


Sec.  190.229  [Removed and Reserved]

0
30. Remove and reserve Sec.  190.229.


Sec.  190.231  [Removed and Reserved]

0
31. Remove and reserve Sec.  190.231.

0
32. In Sec.  190.233, paragraphs (a), (b), (c), (f)(1), and (g) are 
revised to read as follows:


Sec.  190.233  Corrective action orders.

    (a) Generally. Except as provided by paragraph (b) of this section, 
if the Associate Administrator finds, after reasonable notice and 
opportunity for hearing in accord with paragraph (c) of this section, a 
particular pipeline facility is or would be hazardous to life, 
property, or the environment, the Associate Administrator may issue an

[[Page 58913]]

order pursuant to this section requiring the operator of the facility 
to take corrective action. Corrective action may include suspended or 
restricted use of the facility, physical inspection, testing, repair, 
replacement, or other appropriate action.
    (b) Waiver of notice and expedited review. The Associate 
Administrator may waive the requirement for notice and opportunity for 
hearing under paragraph (a) of this section before issuing an order 
whenever the Associate Administrator determines that the failure to do 
so would result in the likelihood of serious harm to life, property, or 
the environment. When an order is issued under this paragraph, a 
respondent that contests the order may obtain expedited review of the 
order either by answering in writing to the order within 10 days of 
receipt or requesting a hearing under Sec.  190.211 to be held as soon 
as practicable in accordance with paragraph (c)(2) of this section. For 
purposes of this section, the term ``expedited review'' is defined as 
the process for making a prompt determination of whether the order 
should remain in effect or be amended or terminated. The expedited 
review of an order issued under this paragraph will be complete upon 
issuance of such determination.
    (c) Notice and hearing:
    (1) Written notice that OPS intends to issue an order under this 
section will be served upon the owner or operator of an alleged 
hazardous facility in accordance with Sec.  190.5. The notice must 
allege the existence of a hazardous facility and state the facts and 
circumstances supporting the issuance of a corrective action order. The 
notice must provide the owner or operator with an opportunity to 
respond within 10 days of receipt.
    (2) An owner or operator that elects to exercise its opportunity 
for a hearing under this section must notify the Associate 
Administrator of that election in writing within 10 days of receipt of 
the notice provided under paragraph (c)(1) of this section, or the 
order under paragraph (b) of this section when applicable. The absence 
of such written notification waives an owner or operator's opportunity 
for a hearing.
    (3) At any time after issuance of a notice or order under this 
section, the respondent may request a copy of the case file as set 
forth in Sec.  190.209.
    (4) A hearing under this section is conducted pursuant to Sec.  
190.211. The hearing should be held within 15 days of receipt of the 
respondent's request for a hearing.
    (5) After conclusion of a hearing under this section, the Presiding 
Official submits a recommended decision to the Associate Administrator 
as to whether or not the facility is or would be hazardous to life, 
property, or the environment, and if necessary, requiring expeditious 
corrective action. If a notice or order is contested in writing without 
a hearing, an attorney from the Office of Chief Counsel prepares the 
recommended decision. The recommended decision should be submitted to 
the Associate Administrator within five business days after conclusion 
of the hearing or after receipt of the respondent's written objection 
if no hearing is held. Upon receipt of the recommendation, the 
Associate Administrator will proceed in accordance with paragraphs (d) 
through (h) of this section. If the Associate Administrator finds the 
facility is or would be hazardous to life, property, or the 
environment, the Associate Administrator issues a corrective action 
order in accordance with this section, or confirms (or amends) the 
corrective action order issued under paragraph (b) of this section. If 
the Associate Administrator does not find the facility is or would be 
hazardous to life, property, or the environment, the Associate 
Administrator withdraws the notice or terminates the order issued under 
paragraph (b) of this section, and promptly notifies the operator in 
writing by service as prescribed in Sec.  190.5.
* * * * *
    (f) * * *
    (1) A finding that the pipeline facility is or would be hazardous 
to life, property, or the environment.
* * * * *
    (g) The Associate Administrator will terminate a corrective action 
order whenever the Associate Administrator determines that the facility 
is no longer hazardous to life, property, or the environment. If 
appropriate, however, a notice of probable violation may be issued 
under Sec.  190.207.
* * * * *


Sec.  190.237  [Removed and Reserved]

0
33. Remove and reserve Sec.  190.237.

0
34. Section 190.239 is amended by revising the headings of paragraphs 
(a), (b), (c), (d), (e), and (f), and adding paragraph (g) to read as 
follows:


Sec.  190.239  Safety orders.

    (a) When may PHMSA issue a safety order? * * *
    (b) How is an operator notified of the proposed issuance of a 
safety order and what are its responses options? * * *
    (c) How is the determination made that a pipeline facility has a 
condition that poses an integrity risk? * * *
    (d) What factors must PHMSA consider in making a determination that 
a risk condition is present? * * *
    (e) What information will be included in a safety order? * * *
    (f) Can PHMSA take other enforcement actions on the affected 
facilities? * * *
    (g) May I petition for reconsideration of a safety order? Yes, a 
petition for reconsideration may be submitted in accordance with Sec.  
190.243.

0
35. Add Sec.  190.241 to Subpart B to read as follows.


Sec.  190.241  Finality.

    Except as otherwise provided by Sec.  190.243, an order directing 
amendment issued under Sec.  190.206, a final order issued under Sec.  
190.213, a corrective action order issued under Sec.  190.233, or a 
safety order issued under Sec.  190.239 is considered final 
administrative action on that enforcement proceeding.

0
36. Add Sec.  190.243 to Subpart B to read as follows.


Sec.  190.243  Petitions for reconsideration.

    (a) A respondent may petition the Associate Administrator for 
reconsideration of an order directing amendment of plans or procedures 
issued under Sec.  190.206, a final order issued under Sec.  190.213, 
or a safety order issued under Sec.  190.239. The written petition must 
be received no later than 20 days after receipt of the order by the 
respondent. A copy of the petition must be provided to the Chief 
Counsel of the Pipeline and Hazardous Materials Safety Administration, 
East Building, 2nd Floor, Mail Stop E26-105, 1200 New Jersey Ave. SE., 
Washington, DC 20590 or by email to phmsachiefcounsel@dot.gov. 
Petitions received after that time will not be considered. The petition 
must contain a brief statement of the complaint and an explanation as 
to why the order should be reconsidered.
    (b) If the respondent requests the consideration of additional 
facts or arguments, the respondent must submit the reasons why they 
were not presented prior to issuance of the final order.
    (c) The filing of a petition under this section stays the payment 
of any civil penalty assessed. However, unless the Associate 
Administrator otherwise provides, the order, including any required 
corrective action, is not stayed.
    (d) The Associate Administrator may grant or deny, in whole or in 
part, any petition for reconsideration without further proceedings. If 
the Associate Administrator reconsiders an order under this section, a 
final decision on

[[Page 58914]]

reconsideration may be issued without further proceedings, or, in the 
alternative, additional information, data, and comment may be requested 
by the Associate Administrator, as deemed appropriate.
    (e) It is the policy of the Associate Administrator to 
expeditiously issue notice of the action taken on a petition for 
reconsideration. In cases where a substantial delay is expected, notice 
of that fact and the date by which it is expected that action will be 
taken is provided to the respondent upon request and whenever 
practicable.
    (f) If the Associate Administrator reconsiders an order under this 
section, the decision on reconsideration is the final administrative 
action on that enforcement proceeding.
    (g) Any application for judicial review must be filed no later than 
89 days after the issuance of the decision in accordance with 49 U.S.C. 
60119(a).
    (h) Judicial review of agency action under 49 U.S.C. 60119(a) will 
apply the standards of review established in 5 U.S.C. 706.

Subpart C [Redesignated as Subpart D]

0
37. Redesignate Subpart C as new Subpart D.

0
38. Add new Subpart C to read as follows:

Subpart C--Criminal Enforcement


Sec.  190.291  Criminal penalties generally.

    (a) Any person who willfully and knowingly violates a provision of 
49 U.S.C. 60101 et seq. or any regulation or order issued thereunder 
will upon conviction be subject to a fine under title 18, United States 
Code, and imprisonment for not more than five years, or both, for each 
offense.
    (b) Any person who willfully and knowingly injures or destroys, or 
attempts to injure or destroy, any interstate transmission facility, 
any interstate pipeline facility, or any intrastate pipeline facility 
used in interstate or foreign commerce or in any activity affecting 
interstate or foreign commerce (as those terms are defined in 49 U.S.C. 
60101 et seq.) will, upon conviction, be subject to a fine under title 
18, United States Code, imprisonment for a term not to exceed 20 years, 
or both, for each offense.
    (c) Any person who willfully and knowingly defaces, damages, 
removes, or destroys any pipeline sign, right-of-way marker, or marine 
buoy required by 49 U.S.C. 60101 et seq. or any regulation or order 
issued thereunder will, upon conviction, be subject to a fine under 
title 18, United States Code, imprisonment for a term not to exceed 1 
year, or both, for each offense.
    (d) Any person who willfully and knowingly engages in excavation 
activity without first using an available one-call notification system 
to establish the location of underground facilities in the excavation 
area; or without considering location information or markings 
established by a pipeline facility operator; and
    (1) Subsequently damages a pipeline facility resulting in death, 
serious bodily harm, or property damage exceeding $50,000;
    (2) Subsequently damages a pipeline facility and knows or has 
reason to know of the damage but fails to promptly report the damage to 
the operator and to the appropriate authorities; or
    (3) Subsequently damages a hazardous liquid pipeline facility that 
results in the release of more than 50 barrels of product; will, upon 
conviction, be subject to a fine under title 18, United States Code, 
imprisonment for a term not to exceed 5 years, or both, for each 
offense.
    (e) No person shall be subject to criminal penalties under 
paragraph (a) of this section for violation of any regulation and the 
violation of any order issued under Sec. Sec.  190.217, 190.219 or 
190.291 if both violations are based on the same act.


Sec.  190.293  Referral for prosecution.

    If a PHMSA employee becomes aware of any actual or possible 
activity subject to criminal penalties under Sec.  190.291, the 
employee reports it to the Office of Chief Counsel, Pipeline and 
Hazardous Materials Safety Administration, and to his or her 
supervisor. The Chief Counsel may refer the report to OPS for 
investigation. If appropriate, the Chief Counsel refers the report to 
the Department of Justice for criminal prosecution of the offender.

0
39. Section 190.319 is revised to read as follows:


Sec.  190.319  Petitions for extension of time to comment.

    A petition for extension of the time to submit comments must be 
submitted to PHMSA in accordance with Sec.  190.309 and received by 
PHMSA not later than 10 days before expiration of the time stated in 
the notice. The filing of the petition does not automatically extend 
the time for petitioner's comments. A petition is granted only if the 
petitioner shows good cause for the extension, and if the extension is 
consistent with the public interest. If an extension is granted, it is 
granted to all persons, and it is published in the Federal Register.

0
40. Section 190.321 is revised to read as follows:


Sec.  190.321  Contents of written comments.

    All written comments must be in English. Any interested person 
should submit as part of written comments all material considered 
relevant to any statement of fact. Incorporation of material by 
reference should be avoided; however, where necessary, such 
incorporated material must be identified by document title and page.

0
41. In Sec.  190.327, paragraph (b) is revised to read as follows:


Sec.  190.327  Hearings.

* * * * *
    (b) Sections 556 and 557 of title 5, United States Code, do not 
apply to hearings held under this subpart. Unless otherwise specified, 
hearings held under this subpart are informal, non-adversarial fact-
finding proceedings, at which there are no formal pleadings or adverse 
parties. Any regulation issued in a case in which an informal hearing 
is held is not necessarily based exclusively on the record of the 
hearing.
* * * * *

0
42. In Sec.  190.335, paragraph (a) is revised to read as follows:


Sec.  190.335  Petitions for reconsideration.

    (a) Except as provided in Sec.  190.339(d), any interested person 
may petition the Associate Administrator for reconsideration of any 
regulation issued under this subpart, or may petition the Chief Counsel 
for reconsideration of any procedural regulation issued under this 
subpart and contained in this subpart. The petition must be received 
not later than 30 days after publication of the rule in the Federal 
Register. Petitions filed after that time will be considered as 
petitions filed under Sec.  190.331. The petition must contain a brief 
statement of the complaint and an explanation as to why compliance with 
the rule is not practicable, is unreasonable, or is not in the public 
interest.
* * * * *


Sec.  190.338  [Amended]

0
43. In Sec.  190.338, paragraph (c) is removed and paragraph (d) is 
redesignated as paragraph (c).

0
44. Section 190.341 is amended by revising the heading of paragraphs 
(a), (b), (c), (d), (e), (f), (g), (h), (i), and (j), and adding 
paragraph (k) to read as follows:


Sec.  190.341  Special permits.

    (a) What is a special permit? * * *

[[Page 58915]]

    (b) How do I apply for a special permit? * * *
    (c) What information must be contained in the application? * * *
    (d) How does PHMSA handle special permit applications? * * *
    (e) Can a special permit be requested on an emergency basis? * * *
    (f) How do I apply for an emergency special permit? * * *
    (g) What must be contained in an application for an emergency 
special permit? * * *
    (h) In what circumstances will PHMSA revoke, suspend, or modify a 
special permit? * * *
    (i) Can a denial of a request for a special permit or a revocation 
of an existing special permit be appealed? * * *
    (j) Are documents related to an application for a special permit 
available for public inspection? * * *
    (k) Am I subject to enforcement action for non-compliance with the 
terms and conditions of a special permit? Yes. PHMSA inspects for 
compliance with the terms and conditions of special permits and if a 
probable violation is identified, PHMSA will initiate one or more of 
the enforcement actions under subpart B of this part.

PART 192--TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: 
MINIMUM FEDERAL SAFETY STANDARDS

0
45. The authority citation for Part 192 continues to read as follows:

    Authority: 49 U.S.C. 60102, 60104, 60108, 60109, 60110, 60113, 
60116, 60118, and 60137; and 49 CFR 1.53.

0
46. In Sec.  192.603, paragraph (c) is revised to read as follows:


Sec.  192.603  General provisions.

* * * * *
    (c) The Associate Administrator or the State Agency that has 
submitted a current certification under the pipeline safety laws, (49 
U.S.C. 60101 et seq.) with respect to the pipeline facility governed by 
an operator's plans and procedures may, after notice and opportunity 
for hearing as provided in 49 CFR 190.206 or the relevant State 
procedures, require the operator to amend its plans and procedures as 
necessary to provide a reasonable level of safety.

PART 193--LIQUEFIED NATURAL GAS FACILITIES: FEDERAL SAFETY 
STANDARDS

0
47. The authority citation for Part 193 continues to read as follows:

    Authority: 49 U.S.C. 60102, 60103, 60104, 60108, 60109, 60110, 
60113, 60118; and 49 CFR 1.53.


0
48. In Sec.  193.2017, paragraph (b) is revised to read as follows:


Sec.  193.2017  Plans and procedures.

* * * * *
    (b) The Associate Administrator or the State Agency that has 
submitted a current certification under section 5(a) of the Natural Gas 
Pipeline Safety Act with respect to the pipeline facility governed by 
an operator's plans and procedures may, after notice and opportunity 
for hearing as provided in 49 CFR 190.206 or the relevant State 
procedures, require the operator to amend its plans and procedures as 
necessary to provide a reasonable level of safety.
* * * * *

PART 195--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE

0
49. The authority citation for Part 195 continues to read as follows:

    Authority: 49 U.S.C. 60102, 60104, 60108, 60109, 60116, 60118, 
and 60137; and 49 CFR 1.53.


0
50. In Sec.  195.402, paragraph (b) is revised to read as follows:


Sec.  195.402  Procedural manual for operations, maintenance, and 
emergencies.

* * * * *
    (b) The Associate Administrator or the State Agency that has 
submitted a current certification under the pipeline safety laws (49 
U.S.C. 60101 et seq.) with respect to the pipeline facility governed by 
an operator's plans and procedures may, after notice and opportunity 
for hearing as provided in 49 CFR 190.206 or the relevant State 
procedures, require the operator to amend its plans and procedures as 
necessary to provide a reasonable level of safety.
* * * * *

PART 199--DRUG AND ALCOHOL TESTING

0
51. The authority citation for Part 199 continues to read as follows:

    Authority:  49 U.S.C. 60102, 60104, 60108, 60117, and 60118; 49 
CFR 1.53.


0
52. In Sec.  199.101, paragraph (b) is revised to read as follows:


Sec.  199.101  Anti-drug plan.

* * * * *
    (b) The Associate Administrator or the State Agency that has 
submitted a current certification under the pipeline safety laws (49 
U.S.C. 60101 et seq.) with respect to the pipeline facility governed by 
an operator's plans and procedures may, after notice and opportunity 
for hearing as provided in 49 CFR 190.206 or the relevant State 
procedures, require the operator to amend its plans and procedures as 
necessary to provide a reasonable level of safety.

    Issued in Washington, DC, on September 18, 2013, under authority 
delegated in 49 CFR Part 1.97(a).
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2013-23047 Filed 9-24-13; 8:45 am]
BILLING CODE 4910-60-P