
[Federal Register Volume 77, Number 156 (Monday, August 13, 2012)]
[Proposed Rules]
[Pages 48112-48122]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19571]


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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]
RIN 2137-AE29


Pipeline Safety: Administrative Procedures; Updates and Technical 
Corrections

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This Notice of Proposed Rulemaking updates the administrative 
civil penalty maximums for violation of the pipeline safety regulations 
to conform to current law, updates the informal hearing and 
adjudication process for pipeline enforcement matters to conform to 
current law, amends other administrative procedures used by PHMSA 
personnel, and makes other technical corrections and updates to certain 
administrative procedures. The proposed amendments do not impose any 
new operating, maintenance, or other substantive requirements on 
pipeline owners or operators.

DATES: Persons interested in submitting written comments on the rule 
amendments proposed in this document must do so by September 12, 2012. 
PHMSA will consider comments filed after this date so far as 
practicable.

ADDRESSES: Comments should reference Docket No. PHMSA-2012-0102 and may 
be submitted in the following ways:
     Web Site: http://www.regulations.gov. This site allows the 
public to enter comments on any Federal Register notice issued by any 
agency. Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: U.S. Department of Transportation (DOT) Docket 
Operations Facility (M-30), West Building, 1200 New Jersey Avenue SE., 
Washington, DC 20590.
     Hand Delivery: DOT Docket Operations Facility, West 
Building, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, 
20590 between 9:00 a.m. and 5:00 p.m., Monday through Friday, except 
Federal holidays
    Instructions: Identify the docket number, PHMSA-2012-0102, at the 
beginning of your comments. If you mail your comments, submit two 
copies. In order to confirm receipt of your comments, include a self-
addressed, stamped postcard.

    Note:  All comments are posted electronically in their original 
form, without changes or edits, including any personal information.

Privacy Act Statement

    Anyone can search the electronic comments associated with any 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). DOT's complete Privacy Act Statement was published in the 
Federal Register on April 11, 2000, (65 FR 19477).

FOR FURTHER INFORMATION CONTACT: James Pates, PHMSA, Office of Chief 
Counsel, 202-366-0331, james.pates@dot.gov; Kristin T.L. Baldwin, 
Office of Chief Counsel, 202-366-6139, kristin.baldwin@dot.gov; or 
Larry White, PHMSA, Office of Chief Counsel, 202-366-9093, 
lawrence.white@dot.gov.

SUPPLEMENTARY INFORMATION:

I. Purpose and Scope

    Effective January 3, 2012, the Pipeline Safety, Regulatory 
Certainty, and Job Creation Act of 2011 (Pub. L. 112-90) (the Act) 
increased the maximum administrative civil penalties for violation of 
the pipeline safety laws and regulations to $200,000 per violation per 
day of violation, with a maximum of $2,000,000 for a related series of 
violations. The Act also imposed certain requirements for the conduct 
of informal administrative enforcement hearings including, among other 
things: convening hearings before a presiding official, an attorney on 
the staff of the Deputy Chief Counsel; providing an opportunity for a 
respondent to arrange for a hearing transcript; ensuring a separation 
of functions between agency employees involved with the investigation 
or prosecution of an enforcement case and those involved in deciding 
the case; and prohibiting ex parte communications. The Act also 
provided PHMSA with new enforcement authority for oil spill response 
plan compliance under section 4202 of the Oil Pollution Act of 1990 (33 
U.S.C. 1321(j)).
    In accordance with the Act, PHMSA proposes to: update the 
administrative civil penalty maximums and the informal hearing process 
for pipeline enforcement matters to conform to current law and to amend 
other administrative procedures used by PHMSA personnel; amend the 
criminal enforcement provisions to conform to current law and practice; 
make corrections to the special permit provisions in the procedures for 
adoption of rules; implement the new enforcement authority for Part 194 
oil spill response plans; and make certain technical amendments and 
corrections. The proposed amendments do not impose any new operating, 
maintenance, or other substantive requirements on pipeline owners or 
operators.

II. Proposed Amendments to Part 190

A. Administrative Civil Penalties and the Informal Hearing and 
Enforcement Process

    Maximum administrative civil penalties. Section 2 of the Pipeline 
Safety Act of 2011 increased the maximum administrative civil penalties 
for violation of the pipeline safety laws and regulations to $200,000 
per violation per day, with a maximum of $2,000,000 for a related 
series of violations. PHMSA proposes to amend 49 CFR 190.223 to reflect 
this increase. PHMSA proposes to apply the new administrative civil 
penalty maximums in cases involving violations that occur or are 
discovered after January 3, 2012. The proposed amendment also removes

[[Page 48113]]

outdated penalty provisions for violations involving offshore gathering 
lines and liquefied natural gas facilities and clarifies the 
applicability of penalties for violations of the terms of an 
enforcement order.
    Presiding Official. Section 20(a)(1)(A) of the Act requires PHMSA 
to issue regulations requiring hearings conducted under 49 U.S.C. 
chapter 601 for the issuance of corrective action orders (CAOs), safety 
orders, compliance orders, and civil penalties to be convened before a 
presiding official. The pipeline enforcement process found in 49 CFR 
part 190, used successfully by PHMSA for many years, already includes 
the use of such a presiding official for informal hearings. The 
amendment proposes to codify existing practice. This process provides 
pipeline operators with the right to receive notice of any alleged 
violations identified during an inspection or investigation; to respond 
to the notice, including the opportunity to request an informal hearing 
or otherwise contest any alleged violations; to examine the evidence; 
to be represented by counsel; to provide any relevant information to 
the proposed penalty amount; and to petition for reconsideration of the 
agency's decision.
    Although current regulations already provide that hearings are held 
before a presiding official, section 20(a)(2) of the Act requires that 
PHMSA issue regulations both defining the term ``presiding official'' 
and requiring the presiding official to be an attorney on the staff of 
the Deputy Chief Counsel who is not engaged in investigative or 
prosecutorial functions. PHMSA proposes to conform to this requirement 
by amending the existing definition of ``presiding official'' in Sec.  
190.3 and by adding a new Sec.  190.212 concerning the presiding 
official's powers and duties.
    The proposed regulations will specify the powers and duties of the 
presiding official and provide that, if the dedicated presiding 
official is unavailable, the Deputy Chief Counsel may delegate the 
duties of the presiding official to another attorney in the Office of 
Chief Counsel who has no prior involvement in the case and who will be 
supervised by the Deputy Chief Counsel. PHMSA also proposes to amend 
Sec.  190.211(a) to clarify that this section applies to any hearing 
relating to civil penalty assessments, compliance orders, safety 
orders, or CAOs.
    Hearing transcript. Section 20(a)(1)(B) of the Act requires PHMSA 
to issue regulations providing the opportunity for any party requesting 
a hearing to arrange for a transcript of the hearing, at the party's 
expense. Although it is currently PHMSA's practice to permit a 
respondent to make arrangements for a transcript at the respondent's 
cost, this is not explicitly stated in Part 190. PHMSA proposes to 
amend Sec.  190.211 to provide that a respondent may arrange for a 
hearing to be recorded or transcribed at its own cost. PHMSA further 
proposes that an accurate copy of the recording or transcript must be 
submitted for the official record.
    Separation of functions and prohibition on ex parte communications. 
Section 20(a)(1)(D) of the Act requires PHMSA to issue regulations 
implementing a separation of functions between agency employees 
involved with the investigation and prosecution of an enforcement case 
and those involved in deciding the case. PHMSA's current practice is to 
ensure that personnel involved in deciding an enforcement case are not 
involved in determining the allegations to be made in that case or 
preparing the Notice of Probable Violation or other type of enforcement 
action. On July 12, 2011, PHMSA explained its separation of functions 
policy in a statement published in the Federal Register (76 FR 40820). 
In order to conform Part 190 to the current law and existing agency 
practice, PHMSA proposes to add a new Sec.  190.210, titled: 
``Separation of functions.'' Paragraph (a) of the new section proposes 
that an agency employee involved in the investigation or prosecution of 
an enforcement case may not participate in the decision of that case or 
a factually related case, but may participate as a witness or counsel 
at a hearing, as set forth in subpart B. Likewise, paragraph (a) 
proposes to require that an agency employee who prepares the decision 
in an enforcement case may not have served in an investigative or 
prosecutorial capacity in that case or a factually related case.
    Section 20(a)(1)(E) of the Act requires PHMSA to issue regulations 
prohibiting ex parte communications that are relevant to the question 
to be decided in an enforcement case. An ex parte communication is a 
communication between a party to a pending case and the decision maker 
regarding an issue in that case occurring outside the presence of the 
other parties and without prior notice and opportunity for all parties 
to provide comment or rebuttal. In the aforementioned July 12, 2011, 
PHMSA policy statement discussed earlier in this preamble, the agency 
explained that ex parte communications with the presiding official are 
not permitted by the operator, its counsel, or agency staff involved in 
the investigation and prosecution of the case. This prohibition applies 
to all communication regarding information, facts, or arguments 
involving an issue in the case, but not to routine administrative 
matters, such as scheduling the hearing or clarification of the 
enforcement process.
    To incorporate this prohibition into Part 190, PHMSA proposes to 
add paragraph (b) to the newly created Sec.  190.210 enjoining any 
party to an enforcement proceeding (e.g., respondent, agency employees 
serving in an investigative or prosecutorial capacity, representatives 
of either party, etc.) from communicating privately with the decision 
maker concerning information that is material to the question to be 
decided. Notwithstanding this addition, parties would be allowed to 
communicate freely with the presiding official regarding procedural or 
administrative issues, such as scheduling a hearing.
    Expedited review of corrective action orders. Section 20(a)(1)(C) 
of the Act requires PHMSA to issue regulations ensuring ``expedited 
review'' of any CAO issued without prior notice pursuant to 49 U.S.C. 
60112(e). Section 20(a)(3) also requires the agency to define the term 
``expedited review'' for purposes of this regulation. The procedural 
regulations for issuance of a CAO after notice and opportunity for 
hearing are outlined in Sec.  190.233. Under paragraph (b) of that 
regulation, PHMSA may waive the requirement for prior notice and 
opportunity for hearing if a failure to do so would result in the 
likelihood of serious harm to life, property, or the environment. In 
cases where an order is issued without prior notice, paragraph (b) 
already requires that an opportunity for a hearing be provided to the 
respondent as soon as is practicable after issuance of the order. PHMSA 
typically schedules hearings within 10 calendar days, except where the 
respondent requests postponement for good cause.
    The current process works well both to ensure that an operator has 
a timely opportunity for a post-order hearing and that PHMSA acts 
expeditiously to render a final determination on the CAO. Therefore, 
PHMSA proposes to conform paragraph Sec.  190.233(b) to current law by 
defining the term ``expedited review'' for purposes of a CAO issued 
without prior notice. In this proposed ``expedited review,'' the 
respondent must either request such review by answering the order in 
writing or by requesting a hearing. The Associate Administrator, as 
soon as practicable following issuance of the order, will decide 
whether the order should remain in effect or be terminated. Once the 
determination is issued, the expedited review process is

[[Page 48114]]

complete. Issuance of the decision will occur as soon as is 
practicable.
    Other amendments to enforcement process. PHMSA also proposes other 
technical amendments and updates to improve the clarity and efficiency 
of the enforcement regulations and to otherwise conform to current 
practice. These proposed amendments include:
    1. Amending Sec.  190.7(a), relating to subpoenas and witness fees, 
to clarify that PHMSA has the authority 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.
    2. Amending Sec.  190.11(a)(1), relating to the availability of 
informal guidance on the pipeline safety regulations, to remove the 
requirement that ``All messages will receive a response by the 
following business day,'' since the Office of Pipeline Safety (OPS) is 
not always able to provide telephonic guidance or interpretive 
assistance on pipeline regulations by the following business day.
    3. Amending Sec.  190.11(a) to revise paragraph (a)(1) and remove 
paragraph (a)(2) to reflect the current practice on obtaining 
telephonic and internet assistance from OPS.
    4. Amending Sec.  190.11(b) to remove paragraph (b)(2) to reflect 
the current practice on obtaining written interpretations from OPS.
    5. Amending Sec.  190.201, relating to the purpose and scope of 
subpart B, to clarify that these enforcement procedures encompass the 
enforcement of 49 U.S.C. 60101 et seq., section 4202 of the Oil 
Pollution Act of 1990 (33 U.S.C. 1321(j)), and any PHMSA regulation or 
order issued thereunder.
    6. Amending Sec.  190.203(c), relating to inspections and 
investigations, to clarify that an OPS request for specific information 
to an owner or operator may be issued at any time and is not limited to 
a request following an inspection.
    7. Amending Sec.  190.203(e) to provide that if a representative of 
DOT investigates an accident or incident involving a pipeline facility, 
the owner or operator of the facility must provide all records and 
information pertaining to the accident or incident to a representative 
of DOT, including integrity management plans and test results. Pursuant 
to this proposed change, the owner or operator of the facility would be 
required to provide all reasonable assistance in the investigation of 
the accident or incident. Civil penalties may be assessed for 
obstructing an OPS inspection or investigation, in accordance with 
section 2 of the Act.
    8. Amending Sec. Sec.  190.205, 190.207, 190.217, 190.219, 190.221, 
and 190.223, relating to enforcement actions, to provide that OPS may 
take varied actions under section 4202 of the Oil Pollution Act of 1990 
(33 U.S.C. 1321(j)).
    9. Amending Sec.  190.211, relating to hearings, to clarify the 
manner in which informal hearings are conducted, including: 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; 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; the hearing is 
conducted informally; OPS, as well as the respondent, may present 
evidence and call witnesses at a hearing; and both parties may request 
permission to submit additional documents after the hearing.
    10. Amending Sec.  190.211(c) to provide that all hearings in civil 
penalty cases under $25,000 (currently $10,000) will be held by 
telephone conference, unless either party requests an in-person 
hearing. This proposed change recognizes the increase in the size of 
civil penalty assessments generally and minimizes travel expense for 
both parties. The presiding official will also have the flexibility to 
order a video conference in addition to a telephonic hearing.
    11. Amending 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 
in order to ensure the respondent's full access to the evidentiary 
record upon which final orders are based.
    12. Amending Sec.  190.213(b), relating to final orders, to clarify 
that the presiding official in a Sec.  190.211 hearing case or an 
attorney from the Office of Chief Counsel in a non-hearing case 
provides a recommended decision to the Associate Administrator 
proposing findings on all material issues.
    13. Amending Sec.  190.213(d) and (e) to remove the provision that 
an operator may file a judicial appeal of a final order without first 
filing a petition for reconsideration. This proposed change will ensure 
that the parties have an administrative opportunity to correct errors 
prior to the filing of a judicial appeal.
    14. Amending Sec.  190.215, relating to petitions for 
reconsideration, by moving the language in this section to Sec.  
190.249 at the end of subpart B and expanding its scope to cover all 
final orders, corrective action orders, notices of amendment, and 
safety orders. This proposed change clarifies that a respondent must 
file a petition to exhaust its administrative remedies. Additionally, a 
proposed provision on the filing period and the standard of judicial 
review has been included in order to conform to 49 U.S.C. 60119.
    15. Amending the existing language in Sec.  190.215(a) that is 
moved to Sec.  190.249 to remove the requirement that a respondent file 
multiple copies of a petition; to allow 30, rather than 20, calendar 
days from receipt of service of a final order to file a petition for 
reconsideration; and to indicate that all petitions must be filed with 
the Associate Administrator, with a copy to the Office of Chief 
Counsel.
    16. Amending Sec.  190.219, relating to consent orders, to expand 
this section to provide that consent orders may also be used to resolve 
CAOs and safety orders.
    17. Amend Sec. Sec.  190.223(b) and 190.229(b), relating to civil 
and criminal penalties, to remove obsolete civil and criminal penalty 
provisions for violations involving offshore gathering lines.
    18. Amending Sec.  190.225(a), relating to civil penalty assessment 
considerations, to remove paragraph (a)(4) relating to ``ability to 
pay'' as a penalty assessment factor, to conform to the Act.
    19. Amending Sec.  190.233(b) and (c), relating to CAOs, to provide 
an expedited process for setting hearings and issuing decisions on CAOs 
and notices of proposed CAOs. This proposal also includes an expedited 
process for handling petitions for reconsideration to challenge CAOs, 
to conform to the Act.

B. Criminal Enforcement

    PHMSA proposes to amend the criminal enforcement provisions as 
follows:
    1. Relocating the criminal enforcement sections to a new ``Subpart 
C--Criminal Enforcement.''
    2. Amending the language in existing Sec.  190.229 that is moved to 
Sec.  190.291, relating to criminal penalties, to remove outdated 
maximum criminal penalty amounts for each criminal offense and insert 
``fined under Title 18'' to conform to current 49 U.S.C. 60123.

C. Procedures for Adoption of Rules

    PHMSA proposes to amend the procedures for the adoption of rules 
provisions as follows:
    1. Redesignating current Subpart C, Procedures for Adoption of 
Rules, as Subpart D.
    2. Amending Sec.  190.207(a), relating to Notices of Probable 
Violation (NOPV), to clarify that a NOPV may be issued for

[[Page 48115]]

violation of a special permit, as a special permit is an agency order 
that is enforceable through a NOPV.
    3. Amending Sec.  190.239 to include a process for filing petitions 
for reconsideration on safety orders.
    4. Amending Sec.  190.337 to remove paragraph (b), relating to the 
reconsideration of petitions for rulemaking, to remove the target times 
for the Associate Administrator to act on petitions for 
reconsideration, to conform to actual practice.
    5. Amending Sec.  190.341, relating to special permits, to clarify 
that PHMSA may issue a NOPV for violations of a special permit.

D. Technical Amendments and Corrections

    PHMSA proposes to make the following technical amendments and 
corrections to Part 190:
    1. Amending Part 190 to remove all references to 49 U.S.C. 5101, to 
update Web sites addresses, telephone numbers, and postal addresses, 
and to eliminate other incorrect references.
    2. Amending Part 190 to remove the term ``PHMSA'' from the phrases 
``Administrator, PHMSA'' and ``Chief Counsel, PHMSA'' throughout Part 
190 and remove the term ``OPS'' from the phrase ``Associate 
Administrator, OPS.''
    3. Amending Sec.  190.3 to define the terms ``Associate 
Administrator,'' ``Chief Counsel,'' ``Day,'' and ``Operator.''
    4. Amending 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 hand, certified mail, or registered mail is complete upon 
mailing.
    5. Amending Sec.  190.203(b)(6) and other sections to eliminate the 
exclusive use of the masculine pronouns ``him'' and ``his'' or to 
define the term to include both masculine and feminine.
    6. Amending Sec.  190.205 to clarify that the Associate 
Administrator or his or her designee(s) issue warning letters and that 
an operator may respond to a warning letter.
    7. Amending Sec.  190.207(a) to clarify that a NOPV may contain a 
combination of warning items, allegations of violation, proposed civil 
penalties, and proposed compliance orders for a probable violation of 
section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)).
    8. Amending Sec.  190.207(c) to clarify that the Associate 
Administrator or his or her designee(s) may amend a NOPV but must 
provide an additional opportunity for response.
    9. Amending Sec.  190.209(a)(1), relating to response options to 
NOPVs, to clarify that if an operator responds by paying a proposed 
civil penalty, such action serves to close only that particular 
allegation of violation and not the entire case.
    10. Amending Sec.  190.209(a) to clarify that in responding to a 
NOPV, an operator may contest it in writing without requesting an in-
person hearing.
    11. Amending Sec.  190.209(c) to correct a typographical error by 
changing the reference from paragraph (c) to paragraph (b).
    12. Amending language in existing Sec.  190.215(a), which is moved 
to Sec.  190.249, to clarify that a petition for reconsideration must 
include an explanation as to why the final order should be 
reconsidered, rather than an explanation of why the ``effectiveness'' 
of the final order should be stayed.
    13. Amending Sec.  190.223(a) to clarify that the term ``civil 
penalty'' refers to ``administrative'' civil penalties.
    14. Amending Sec.  190.227(a), relating to the payment of 
penalties, to allow payment of penalties under $10,000 to be made via 
``www.pay.gov'' and to provide the correct address.
    15. Amending Sec. Sec.  190.233 to clarify that CAOs are based upon 
a determination that a particular facility ``is or would be 
hazardous,'' which tracks the statutory language in 49 U.S.C. 60112, 
and to clarify that the closure of a CAO ``terminates'' it, as opposed 
to ``rescinding'' it.
    16. Amending Sec. Sec.  190.239 and 190.341 to italicize the 
questions at the beginning of each lettered paragraph.
    17. Amending Sec.  190.319, relating to extensions of time for 
rulemaking comment periods, to clarify that petitions for extensions of 
time to file comments must be addressed to PHMSA, as provided in Sec.  
190.309.
    18. Amending Sec.  190.321, relating to the contents of written 
comments, to remove the requirement to submit multiple copies of a 
rulemaking comment.
    19. Amending Sec.  190.327(b), relating to hearings on proposed 
rulemakings, to clarify that procedures for rulemaking hearings do not 
apply to other types of hearings by deleting the phrase ``under this 
part'' and inserting ``under this subpart.''
    20. Amending Sec.  190.335(a) and removing Sec.  190.338(c), 
relating to the reconsideration of petitions for rulemaking and 
appeals, to remove the requirement to submit multiple copies of each.
    21. For administrative purposes, Sec. Sec.  190.241, 190.243, 
190.245, and 190.247 are added and reserved.
    22. Amending Sec. Sec.  192.603(c), 193.2017(b), 195.402(b), and 
199.101(b) to change the reference to Sec.  190.237 to Sec.  190.206.

III. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This notice of proposed rulemaking is published under the authority 
of the Federal Pipeline Safety Law (49 U.S.C. 60101 et seq.). Section 
60102 authorizes the Secretary of Transportation to issue regulations 
governing design, installation, inspection, emergency plans and 
procedures, testing, construction, extension, operation, replacement, 
and maintenance of pipeline facilities. Section 60102(l) of the Federal 
Pipeline Safety Law states that the Secretary shall, to the extent 
appropriate and practicable, update incorporated industry standards 
that have been adopted as part of the Federal pipeline safety 
regulations.

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

    This proposed rule is not considered a significant regulatory 
action under Section 3(f) of Executive Order 12866 and, therefore, is 
not subject to review by the Office of Management and Budget. This 
proposed rule is not significant under DOT Regulatory Policies and 
Procedures (44 FR 11034; Feb. 26, 1979). 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. As this proposed rule involves agency 
practice and procedure, proposes to conform agency procedural 
requirements to current public law, and does not recommend imposing any 
new substantive requirements on operators or the public, it has no 
significant economic impact on regulated entities.

C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism''). This proposed rule does not introduce any regulation 
that: (1) Has substantial direct effects 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; (2) imposes substantial direct compliance costs on state 
and local governments; or (3) preempts state law. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.

[[Page 48116]]

Further, this proposed rule does not have an impact on federalism that 
warrants preparation of a federalism assessment.

D. Executive Order 13175

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13175 
(``Consultation and Coordination with Indian Tribal Governments''). 
This proposed rule does not significantly or uniquely affect the 
communities of the Indian tribal governments; therefore, the funding 
and consultation requirements of Executive Order 13175 do not apply.

E. Executive Order 13211

    This proposed rule is not a significant energy action under 
Executive Order 13211. It is not a significant regulatory action under 
Executive Order 12866 and is not likely to have a significant, adverse 
effect on the supply, distribution, or use of energy. Furthermore, this 
proposed rule has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action.

F. Regulatory Flexibility Act

    As this proposed rule updates the Part 190 procedures in accordance 
with current public law and will have no direct or indirect economic 
impacts for government units, businesses, or other organizations, I 
certify that this proposed rule will not have a significant economic 
impact on a substantial number of small entities.

G. Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements or additional paperwork burdens. Therefore, submitting an 
analysis of the burdens to OMB pursuant to the Paperwork Reduction Act 
is unnecessary.

H. Unfunded Mandates Reform Act

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

I. Environmental Assessment

    As this proposed rule amends agency administrative practice and 
procedure and does not impose any new substantive environmental 
requirements on operators or the public or change the environmental 
status quo in any way, there are no significant environmental impacts 
associated with this rule.

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, Incorporation by reference, Petroleum, 
Pipeline safety, Reporting and recordkeeping requirements.

49 CFR Part 199

    Drug testing, alcohol misuse.

    For the reasons discussed in the preamble, PHMSA proposes to amend 
49 CFR Subchapter C as follows:

PART 190--PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES

    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 
1.53.

PART 190--[AMENDED]

    2. Part 190 is amended by revising the title to read:

PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES.

PART 190--[AMENDED]

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


Sec.  190.1  [Amended]

    6. In Sec.  190.1, paragraph (a) is amended by removing the phrase 
``and 49 U.S.C. 5101 et seq. (the hazardous material transportation 
laws)''.
    7. In Sec.  190.3, the definition of ``Presiding Official'' is 
revised and the 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.
    Chief Counsel means the Chief Counsel of the PHMSA.
    Day means a 24-hour period ending at 11:59 p.m.
* * * * *
    Operator means any or all of the owners or operators.
* * * * *
    Presiding official means the person who conducts any hearing 
relating to civil penalty assessments, compliance orders, safety 
orders, or corrective action orders and who has the duties and powers 
set forth in Sec.  190.212.
* * * * *
    8. In Sec.  190.7, paragraphs (a) and (d) are revised to read as 
follows:


Sec.  190.7  Subpoenas; witness fees.

    (a) The Administrator, the Chief Counsel, or an official designated 
by the Administrator may sign and issue subpoenas individually on his 
or her own initiative at any time. Such times may include during 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.
* * * * *
    (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. Service of a subpoena can also be made 
by certified or registered mail to the person at the last known 
address. Service is complete upon mailing. 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, or by any method whereby 
actual notice is given to the person and the fees are made available 
prior to the return date.
* * * * *
    9. In Sec.  190.11, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  190.11  Availability of informal guidance and interpretive 
assistance.

    (a) Availability of telephonic and Internet assistance. PHMSA has

[[Page 48117]]

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 
http://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.
* * * * *
    10. 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., section 
4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)), and any 
PHMSA regulation or order issued thereunder. It also prescribes the 
procedures governing the exercise of that authority and the imposition 
of those sanctions.
* * * * *
    11. 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, or 
his or her designee.
    (c) If the Associate Administrator believes that further 
information is needed to determine appropriate action, the Associate 
Administrator may notify the pipeline operator in writing that the 
operator is required to provide specific information within a period 
specified by the Associate Administrator, but no later than 30 days 
from the time the notification is received by the operator. The 
notification must provide a reasonable description of the specific 
information required.
* * * * *
    (e) If a representative of the U.S. Department of Transportation 
inspects or investigates an incident involving a pipeline facility, the 
operator must make available to the representative all records and 
information that pertain to the incident 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.
    12. Section 190.205 is revised to read as follows:


Sec.  190.205  Warning letters.

    Upon determining that a probable violation of 49 U.S.C. 60101 et 
seq., section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 
1321(j)), or any regulation or order issued thereunder has occurred, 
the Associate Administrator or his or her designee(s) may issue a 
Warning Letter notifying the owner or operator of the probable 
violation and advising the owner or operator to correct it or be 
subject to potential enforcement action under this subpart. The owner 
or operator may submit a response to the Warning Letter but is not 
required to.
    13. 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, 194, 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 action for revision 
of the plans or procedures and provide an opportunity for a hearing 
under Sec.  190.211 of this Part. The notice will allow the operator 30 
days after receipt of the notice to submit written comments, revised 
procedures, or request a hearing. 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 and orders the required amendment 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 available 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.
    (b) The amendment of an operator's plans or procedures prescribed 
in paragraph (a) of this section is in addition to, and may be used in 
conjunction with, the appropriate enforcement actions prescribed in 
this subpart.
    14. In Sec.  190.207, paragraphs (a) and (c) are revised 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 and charging that person with a probable 
violation of 49 U.S.C. 60101 et seq., section 4202 of the Oil Pollution 
Act of 1990 (33 U.S.C. 1321(j)), or any regulation or order issued 
thereunder.
* * * * *
    (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.  190.209.
    15. In Sec.  190.209, paragraphs (a) and (c) are revised to read as 
follows:


Sec.  190.209  Response options.

    (a) When the notice contains a proposed civil penalty--
    (1) If 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 
PHMSA to make a finding of violation as to the uncontested item(s), 
with prejudice to the respondent;

[[Page 48118]]

    (2) If respondent is not contesting an allegation of probable 
violation but wishes to submit a written explanation, information or 
other materials respondent believes may warrant mitigation or 
elimination of the proposed civil penalty, respondent may submit such 
materials. This authorizes PHMSA to make a finding of violation and to 
issue a final order under Sec.  190.213;
    (3) If respondent is contesting one or more allegations of probable 
violation but is not requesting a hearing under Sec.  190.211, 
respondent may submit a written response in answer to the allegations; 
or
    (4) The respondent may request a hearing under Sec.  190.211.
* * * * *
    (c) Failure of the respondent 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.
* * * * *
    16. 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 a 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 or presiding official concerning information 
that is material to the question to be decided in the proceeding. A 
party may communicate, however, with the presiding official regarding 
certain administrative or procedural issues, such as for scheduling a 
hearing.
    17. Section 190.211 is revised to read as follows:


Sec.  190.211  Hearings.

    (a) General. This section applies to hearings conducted under this 
part relating to civil penalty assessments, compliance orders, safety 
orders, and corrective action orders. A presiding official will convene 
all hearings conducted under this section.
    (b) Hearing request and statement of issues. A request for a 
hearing provided for in this part 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. 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.
    (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 PHMSA 
Region. Hearings may be held by video teleconference if the necessary 
equipment is available to all parties.
    (d) Request for evidentiary material. Upon request, to the extent 
practicable, OPS will provide to the respondent in advance of the 
hearing all evidentiary material upon which OPS intends to rely or to 
introduce at the hearing that is pertinent to the issues to be 
determined. The respondent may respond to or rebut this material at the 
hearing as set forth in this section.
    (e) Pre-hearing submission. Respondent must submit all records, 
documentation, and other written evidence it intends to use to rebut an 
allegation of violation at least 10 calendar days prior to the date of 
the hearing, unless another deadline is ordered by the presiding 
official. Failure to submit the material in advance of the hearing in 
accordance with this paragraph will waive the respondent's right to 
introduce the material at the hearing, unless the presiding official 
finds there is good cause for not timely submitting the materials.
    (f) 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, explanation, documents, testimony or other 
items that are 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 may permit 
discussion on the issues under consideration.
    (g) Transcript. PHMSA does not prepare a detailed record of the 
hearing. The respondent may arrange for the hearing to be recorded or 
transcribed at cost to the respondent, provided the respondent submits 
an accurate copy of the recording or transcript for the official 
record.
    (h) 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.
    (i) Preparation of decision. After submission of all materials 
during and after the hearing, the presiding official prepares a 
recommended decision in the case. This recommended decision, along with 
any material submitted during and after the hearing, will be included 
in the record which is forwarded to the Associate Administrator for 
issuance of a decision and order.
    18. 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 a notice 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 with no prior involvement in 
the matter to be heard who will serve as the presiding official.
    (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

[[Page 48119]]

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 concerning the matters that are subject of the hearing;
    (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) Fix the time for filing documents, briefs, and other items;
    (6) Prepare a recommended decision; and
    (7) Exercise such other authority as is necessary to carry out the 
responsibilities of the presiding official under this subpart.
    19. Section 190.213 is amended by revising paragraph (b)(5), adding 
paragraph (b)(6) and removing paragraphs (d) and (e) to read as 
follows:


Sec.  190.213  Final order.

* * * * *
    (b) * * *
    (5) In cases involving a Sec.  190.211 hearing, any material 
submitted during and after the hearing; and
    (6) The recommended decision prepared by the presiding official in 
cases involving a Sec.  190.211 hearing, or prepared by an attorney 
from the Office of Chief Counsel in cases not involving a hearing, 
containing proposed findings and determinations on all material issues.
    (c) * * *


Sec.  190.215  [Removed and Reserved]

    20. Remove and reserve Sec.  190.215.
    21. Section 190.217 is revised to read as follows:


Sec.  190.217  Compliance orders generally.

    When the Associate Administrator has reason to believe that a 
person is engaging in conduct that violates 49 U.S.C. 60101 et seq., 
section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)), or 
any regulation or order issued thereunder, and if the nature of the 
violation and the public interest warrant, the Associate Administrator 
may conduct proceedings under Sec. Sec.  190.207 through 190.213 of 
this part to determine the nature and extent of the violations and to 
issue an order directing compliance.
    22. 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 Associate Administrator and the 
respondent may agree to dispose of the case by execution of a consent 
agreement and order which may be jointly executed. Upon execution, the 
consent order is considered a final order under Sec.  190.213.
* * * * *
    (c) The proposed execution of a consent agreement and order arising 
out of a corrective action order under Sec.  190.233 will comply with 
the notification procedures set forth in 49 U.S.C. 60112(c).
    23. Section 190.221 is revised to read as follows:


Sec.  190.221  Civil penalties generally.

    When the Associate Administrator has reason to believe that a 
person has committed an act violating 49 U.S.C. 60101 et seq., section 
4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)), or any 
regulation or order issued thereunder, proceedings under Sec. Sec.  
190.207 through 190.213 may be conducted to determine the nature and 
extent of the violations and to assess and, if appropriate, compromise 
a civil penalty.
    24. 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. section 4202 of the Oil Pollution Act of 1990 (33 
U.S.C. 1321(j)), or any regulation or order issued thereunder after 
January 3, 2012, 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 any standard or 
order under 49 U.S.C. 60129 shall be subject to a civil penalty not to 
exceed $1,000, which shall be in addition to any other penalties to 
which such person may be subject under paragraph (a) of this section.
    (c) No person will be subject to a civil penalty under this section 
for the violation of any provision of 49 U.S.C. 60101 et seq. or any 
regulation issued thereunder resulting in an order being issued under 
Sec. Sec.  190.217, 190.219 or 190.233 and a violation of the 
requirements of such an order if both violations are based on the same 
act, except that failure to comply with the terms of such orders 
constitutes a different act.
    25. In Sec.  190.225, paragraphs (a)(1), (a)(2), (a)(3), (a)(4) and 
(a)(5) are revised to read as follows:


Sec.  190.225  Assessment considerations.

* * * * *
    (a) The Associate Administrator shall 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
* * * * *
    26. 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, 
by wire transfer through the Federal Reserve Communications System 
(Fedwire) to the account of the U.S. Treasury, or via ``www.pay.gov.'' 
Payments exceeding $10,000 must be made by wire transfer.
* * * * *


Sec.  190.229  [Removed and Reserved]

    27. Remove and reserve Sec.  190.229.


Sec.  190.231  [Removed and Reserved]

    28. Remove and reserve Sec.  190.231.
    29. In Sec.  190.233, paragraphs (a), (b), (c)(3), (c)(4), (f)(1), 
and (g) are revised to read as follows:


Sec.  190.233  Corrective action orders.

    (a) 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 and Sec.  
190.211, a particular pipeline

[[Page 48120]]

facility is or would be hazardous to life, property, or the 
environment, the Associate Administrator may issue an order pursuant to 
this section requiring the owner or 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) 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 elects to contest the order may 
obtain expedited review of the order either by answering in writing to 
the order or requesting a Sec.  190.211 hearing 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 terminated, in accordance with paragraph 
(g) of this section. The expedited review of an order issued under this 
paragraph will be complete upon issuance of such determination.
    (c) * * *
    (3) A hearing under this section will be conducted pursuant to 
Sec.  190.211.
    (4) After conclusion of a hearing under this section, the presiding 
official will submit a recommendation to the Associate Administrator as 
to whether or not a hazardous condition that exists or may exist 
requiring corrective action expeditiously. 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, OPS issues a 
corrective action order in accordance with this section or continues a 
corrective action order already 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 will withdraw the allegation of the existence 
of a hazardous facility contained in the notice or will terminate a 
corrective action order issued under paragraph (b), and promptly notify 
the owner or 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]

    30. Remove and reserve Sec.  190.237.
    31. Section 190.239 is amended by revising the heading 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.  
190.249.


Sec.  190.241  [Reserved]

    32. Add and reserve Sec.  190.241.


Sec.  190.243  [Reserved]

    33. Add and reserve Sec.  190.243.


Sec.  190.245  [Reserved]

    34. Add and reserve Sec.  190.245.


Sec.  190.247  [Reserved]

    35. Add and reserve Sec.  190.247.
    36. Add Sec.  190.249 to subpart B to read as follows:


Sec.  190.249  Petitions for reconsideration.

    (a) A respondent may petition the Associate Administrator for 
reconsideration of a final order issued under Sec.  190.213, a 
compliance order issued under Sec.  190.217, a corrective action order 
issued under Sec.  190.233, an order directing amendment of plans or 
procedures under Sec.  190.206, or a safety order under Sec.  190.239. 
The petition must be received no later than 30 days after service of 
the order upon the respondent and a copy must be provided to the Office 
of Chief Counsel. 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 they were 
not presented prior to issuance of the final order.
    (c) The Associate Administrator does not consider repetitious 
information, arguments, or petitions.
    (d) The filing of a petition under this section stays the payment 
of any civil penalty assessed. However, unless the Associate 
Administrator, OPS otherwise provides, the order, including any 
required corrective action, is not stayed.
    (e) The Associate Administrator may grant or deny, in whole or in 
part, any petition for reconsideration without further proceedings. In 
the event the Associate Administrator reconsider a final order, a final 
decision on 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.
    (f) It is the policy of the Associate Administrator to issue notice 
of the action taken on a petition for reconsideration expeditiously. 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.
    (g) The Associate Administrator's decision on reconsideration is 
the final agency action. 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). Failure to raise an issue in a 
petition for reconsideration waives the availability of judicial review 
of that issue.
    (h) Judicial review of agency action under 49 U.S.C. 60119(a) will 
apply the standards of review established in section 706 of title 5.

Subpart C--[Redesignated as Subpart D]

    37. Redesignate existing subpart C as new subpart D.
    38. Add new subpart C to read as follows:

[[Page 48121]]

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 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, 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, 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, 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 an employee of the Pipeline and Hazardous Materials Safety 
Administration becomes aware of any actual or possible activity subject 
to criminal penalties under Sec.  190.291, the employee reports it to 
the Office of the Chief Counsel, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, Washington, 
DC 20590. The Chief Counsel refers the report to OPS for investigation. 
Upon completion of the investigation and if appropriate, the Chief 
Counsel refers the report to the Department of Justice for criminal 
prosecution of the offender.
    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.
    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 shall be identified by document title and page.
    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 part 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.
* * * * *
    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.
* * * * *
    43. Section 190.337 is revised to read as follows:


Sec.  190.337  Proceedings on petitions for reconsideration.

    The Associate Administrator or the Chief Counsel may grant or deny, 
in whole or in part, any petition for reconsideration without further 
proceedings, except where a grant of the petition would result in 
issuance of a new final rule. In the event that the Associate 
Administrator or the Chief Counsel determines to reconsider any 
regulation, a final decision on reconsideration may be issued without 
further proceedings, or an opportunity to submit comment or information 
and data as deemed appropriate, may be provided. Whenever the Associate 
Administrator or the Chief Counsel determines that a petition should be 
granted or denied, the Office of the Chief Counsel prepares a notice of 
the grant or denial of a petition for reconsideration, for issuance to 
the petitioner, and the Associate Administrator or the Chief Counsel 
issues it to the petitioner. The Associate Administrator or the Chief 
Counsel may consolidate petitions relating to the same rules.


Sec.  190.338  [Amended]

    44. In Sec.  190.338, paragraph (c) is removed and reserved.
    45. 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? * * *
    (b) How do I apply for a special permit? * * *
    (c) What information must be contained in the application? * * *

[[Page 48122]]

    (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 
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

    46. The authority citation for Part 192 continues to read as 
follows: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 
60116, 60118, and 60137; and 49 CFR 1.53.
    47. In Sec.  192.603, paragraph (c) is revised read as follows:


Sec.  192.603  General provisions.

* * * * *
    (c) The 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

    48. The authority citation for Part 193 continues to read as 
follows: 49 U.S.C. 5103, 60102, 60103, 60104, 60108, 60109, 60110, 
60113, 60118; and 49 CFR 1.53.
    49. In Sec.  193.2017, paragraph (b) is revised read as follows:


Sec.  192.2017  Plans and procedures.

* * * * *
    (b) The 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

    50. The authority citation for Part 195 continues to read as 
follows: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60116, 60118, and 
60137; and 49 CFR 1.53.
    51. In Sec.  195.402, paragraph (b) is revised read as follows:


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

* * * * *
    (b) The 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--TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE

    52. The authority citation for Part 199 continues to read as 
follows: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118; 49 CFR 
1.53.
    53. In Sec.  199.101, paragraph (b) is revised read as follows:


Sec.  199.101  Anti-drug plan.

* * * * *
    (b) The 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 August 6, 2012.
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
[FR Doc. 2012-19571 Filed 8-10-12; 8:45 am]
BILLING CODE 4910-60-P


