
[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Rules and Regulations]
[Pages 70980-70987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24788]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 190

[Docket No. PHMSA-2016-0091; Amdt. No. 190-18]
RIN 2137-AF26


Pipeline Safety: Enhanced Emergency Order Procedures

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

ACTION: Interim final rule.

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SUMMARY: This interim final rule (IFR) establishes regulations 
implementing the emergency order authority conferred on the Secretary 
of Transportation (Secretary) by the ``Protecting our Infrastructure of 
Pipelines and Enhancing Safety Act of 2016'' (PIPES Act). These 
regulations are mandated by the PIPES Act and, in accordance with the 
Act, PHMSA is establishing procedures for the issuance of emergency 
orders that will be used to address an unsafe condition or practice, or 
combination of unsafe conditions or practices, that pose an imminent 
hazard to public health and safety or the environment. By implementing 
this statutory mandate, PHMSA will enhance its existing enforcement 
authority to respond immediately to conditions or practices that exist 
in a subset of, or across, the pipeline industry. This IFR solely 
affects agency enforcement procedures to implement the emergency order 
provisions of the law and; therefore, this rulemaking results in no 
additional burden or compliance costs to industry. PHMSA is issuing 
this IFR because the PIPES Act directs PHMSA to first issue temporary 
regulations. However, the agency invites comments and will, if 
appropriate, make changes to the IFR prior to the issuance of a final 
rule, which the agency must

[[Page 70981]]

issue, by statute, no later than 270 days following enactment of the 
PIPES Act.

DATES: Effective date: This interim final rule is effective October 14, 
2016.
    Comment date: Comments must be received by December 13, 2016.

ADDRESSES: You may submit comments by any of the following methods:
     U.S. Government Regulations Web site: http://www.regulations.gov. Use the search tools to find this rulemaking and 
follow the instructions for submitting comments.
     U.S. Mail or private delivery service: Docket Operations, 
U.S. Department of Transportation, West Building, Ground Floor, Room 
W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., W12-140, 
Washington, DC 20590-0001.
     Fax: 1-202-493-2251.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 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: You must include the agency name and docket number, 
PHMSA-2016-0091 or the Regulatory Identification Number (2137-AF26) for 
this rulemaking at the beginning of your comment. Note that all 
comments received will be posted without change to the U.S. Government 
Regulations Web site: http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act section of 
this document.

FOR FURTHER INFORMATION CONTACT: James M. Pates, Assistant Chief 
Counsel for Pipeline Safety, (202) 366-0331; Kristin T. L. Baldwin, 
Senior Attorney, Office of Chief Counsel, (202) 366-6139, Pipeline and 
Hazardous Materials Safety Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Section 16 of the PIPES Act amends 49 U.S.C. 60117 by establishing 
a new emergency order authority for PHMSA in the area of pipeline 
safety. See 49 U.S.C. 60117(o). The statutory mandate requires PHMSA to 
develop procedures for the issuance of emergency orders to address 
unsafe conditions or practices posing an imminent hazard. This 
emergency order authority augments PHMSA's existing authority (e.g., 
Corrective Action Orders, Notices of Proposed Safety Order, Advisory 
Bulletins, etc.) by allowing PHMSA to act quickly to address imminent 
safety hazards that exist across a subset or larger group of owners or 
operators.
    PHMSA is initiating this rulemaking with an IFR without prior 
notice of proposed rulemaking and opportunity to comment because 
section 16 states that the Secretary of Transportation \1\ must issue 
temporary regulations no later than 60 days (August 21, 2016) following 
enactment of the PIPES Act. Furthermore, the Secretary must issue final 
regulations no later than 270 days (March 19, 2017) following enactment 
of the PIPES Act, at which time the temporary regulations will expire. 
In order to comply with this section of the PIPES Act as quickly as 
possible, PHMSA has determined that good cause exists for issuing an 
IFR.
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    \1\ The Secretary has delegated the responsibility to exercise 
the authority vested in chapter 601 of title 49, U.S.C. to the 
Administrator for PHMSA. See 49 CFR 1.97(a).
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II. Background and Purpose

    On June 22, 2016, the President signed the PIPES Act, Pubic Law 
114-183, which amended the Pipeline Safety Laws in title 49 of the 
statute, 130 Stat. 514. Congress enacted section 16 to address the 
current gap in PHMSA's authority that prevents it from addressing 
conditions or practices that extend beyond or affect more than a single 
pipeline owner or operator and must be addressed immediately in order 
to protect life, property or the environment. Section 60117(o) augments 
PHMSA's existing enforcement authority to act quickly to address 
imminent safety hazards that exist across a subset or larger group of 
owners or operators. Section 60117(o) authorizes PHMSA to issue an 
emergency order if it determines that a violation, unsafe condition or 
practice, or a combination of unsafe conditions and practices, 
constitutes or is causing an imminent hazard. Under this section, an 
emergency order may impose restrictions, prohibitions, and safety 
measures on owners and operators of gas or hazardous liquid pipeline 
facilities without prior notice or an opportunity for a hearing. This 
regulatory authority allows PHMSA to impose conditions on a subset, or 
a broader group, of owners/operators, facilities, or systems, in 
accordance with the statutorily-mandated procedures outlined in this 
IFR.

A. Current Authorities: Corrective Action Orders and Safety Orders

1. Corrective Action Orders
    Section 60112 of title 49, United States Code, provides for the 
issuance of a Corrective Action Order (CAO) to a pipeline facility 
after notice and an opportunity for a hearing. Prior to issuing a CAO, 
the Associate Administrator for Pipeline Safety must consider the 
following factors, if relevant: (1) The characteristics of the pipe and 
other equipment used in the pipeline facility involved, including its 
age, manufacturer, physical properties (including its resistance to 
corrosion and deterioration), and the method of its manufacture, 
construction or assembly; (2) the nature of the materials transported 
by such facility (including their corrosive and deteriorative 
qualities), the sequence in which such materials are transported, and 
the pressure required for such transportation; (3) the characteristics 
of the geographical areas in which the pipeline facility is located, in 
particular the climatic and geologic conditions (including soil 
characteristics) associated with such areas, and the population density 
and population and growth patterns of such areas; (4) any 
recommendation of the National Transportation Safety Board (NTSB) 
issued in conjunction with any investigations conducted by the NTSB; 
and (5) such other factors as the Associate Administrator may consider 
appropriate. 49 CFR 190.233(e). After weighing these factors and 
finding that a particular facility ``is or would be hazardous to life, 
property, or the environment,'' see 49 CFR 190.233(a), the Associate 
Administrator may order the suspended or restricted use of a pipeline 
facility, physical inspection, testing, repair, replacement, or other 
appropriate action. Furthermore, if the Associate Administrator finds 
that failure to issue the CAO expeditiously would result in the 
likelihood of serious harm to life, property, or the environment, the 
CAO may be issued without prior notice and an opportunity for a 
hearing. See 49 CFR 190.233(b). In such cases, the affected owner or 
operator must be provided with the opportunity for a hearing and 
expedited review as soon as practicable following issuance of the CAO. 
In all circumstances, CAOs are issued to and binding upon a single 
owner, operator, or pipeline facility. PHMSA's statutory grant of 
authority does not confer the ability to issue a CAO to more than one 
owner or operator.
2. Safety Orders
    PHMSA also utilizes a Notice of Proposed Safety Order (NOPSO) to 
notify an operator that a particular pipeline facility has a condition 
or conditions that pose a pipeline integrity risk to public safety, 
property, or the environment. The NOPSO proposes

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specific measures that an operator must take to address the identified 
risk. These may include inspections, testing, repairs, or other 
appropriate actions to remedy the identified risk or condition. A NOPSO 
addresses pipeline integrity risks that may require the owner or 
operator to take immediate corrective actions or ones that must be 
addressed over a longer period of time. Again, these orders may only be 
issued to a single owner or operator and are not intended to address 
imminent safety or environmental hazards.

B. Hazmat Emergency Order Authority

    The Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005 (HMTSSRA) conferred on the Secretary 
enhanced inspection authority for hazardous materials transportation, 
investigation, and enforcement authority. Public Law 109-59 (Aug. 10, 
2005). Prior to the enactment of HMTSSRA, DOT could obtain relief 
against a hazmat safety violation posing an imminent hazard only 
through a court order. After finding such a threat, the DOT operating 
administration was required to enlist the Department of Justice to file 
a civil action against the offending party, and seek a restraining 
order or preliminary injunction. As a practical matter, judicial relief 
could rarely be obtained before the hazardous transportation movement 
was complete. In 2011, PHMSA published a final rule instituting 
enhanced enforcement authority. (Hazardous Materials: Enhanced 
Enforcement Authority Procedures, 76 FR 11570 (Mar. 2, 2011)). The 
final rule included streamlined administrative remedies that materially 
enhanced PHMSA's ability to prevent the unsafe movement of hazardous 
materials. These procedures address the issuance of emergency orders to 
abate unsafe conditions or practices posing an imminent hazard related 
to the transportation of hazardous materials. The Emergency Order 
Authority regulations contained in this IFR are modeled after the 
enhanced authority conferred by HMTSSRA, to the extent required by the 
PIPES Act.

C. Need for Enhanced Emergency Order Authority for Pipelines

    While CAOs are an effective tool for the prompt evaluation and 
correction of a particular operator's facilities or procedures and 
advisory bulletins provide recommendations--but not enforceable 
requirements--to a wider audience, no enforcement vehicle existed, 
prior to adoption of the PIPES Act, that would allow PHMSA to address 
immediate safety threats facing the wider industry. This new 
enforcement tool will allow the Administrator to issue an emergency 
order either prohibiting an unsafe condition or practice or imposing an 
affirmative requirement when an unsafe condition, practice, or other 
activity in the transportation of natural gas or hazardous liquids 
poses a threat to life or significant harm to property or the 
environment. The emergency order authority conferred by the PIPES Act 
is intended to serve as a flexible enforcement tool that can be used to 
address time-sensitive, safety conditions affecting multiple owners/
operators, facilities, or systems that pose a threat to life or 
significant harm to property or the environment. Unlike a CAO issued to 
a single operator, an emergency order would affect multiple or all 
operators and/or pipeline systems that share a common characteristic or 
condition. A variety of circumstances could warrant such an action, 
including: (1) Where a natural disaster affects many pipelines in a 
specific geographic region; (2) where a serious flaw has been 
discovered in pipe, equipment manufacturing, or supplier materials; and 
(3) where an accident reveals a specific industry practice that is 
unsafe and needs immediate or temporary correction. This list is not 
intended to be exhaustive. PHMSA will examine the specific facts in 
each situation to determine if an imminent hazard exists and will 
tailor each emergency order to address the specific imminent hazard 
under each circumstance presented, while observing the statutorily-
mandated due process procedures.

D. PIPES Act Requirements Related to the Emergency Order Authority

    Under section 16 of the PIPES Act, PHMSA may issue an emergency 
order without prior notice or an opportunity for a hearing when an 
unsafe condition or practice, or a combination of unsafe conditions and 
practices constitutes or is causing an imminent hazard. Section 16 
defines an ``imminent hazard'' as ``the existence of a condition 
relating to a gas or hazardous liquid pipeline facility that presents a 
substantial likelihood that death, serious illness, severe personal 
injury, or a substantial endangerment to health, property, or the 
environment may occur before the reasonably foreseeable completion date 
of a formal proceeding begun to lessen the risk of such death, illness, 
injury, or endangerment.''
    The IFR requires that prior to issuance of an emergency order, 
PHMSA must consider the impact that an emergency order will have on 
public health and safety, the national or regional economy or national 
security, and the ability of owners and operators of pipeline 
facilities to maintain reliability and continuity of service to 
customers. An aggrieved entity may file a petition for review, at which 
time PHMSA must provide an opportunity for a review of the emergency 
order under 5 U.S.C. 554 to determine whether the order should remain 
in effect, be modified, or be terminated. If no agency decision with 
respect to the petition is issued on or before the last day of the 30-
day period beginning on the date on which the petition is filed, the 
order will cease to be effective, unless the Administrator determines 
in writing, on or before the last day of such period, that the imminent 
hazard still exists.

III. Basis for Good Cause Determination

    Under the Administrative Procedure Act (APA) and the Federal 
Pipeline Safety Laws, PHMSA may issue an IFR when there is ``good 
cause'' to find that the notice[hyphen]and[hyphen]comment process would 
be ``impracticable, unnecessary, or contrary to the public interest,'' 
and the agency incorporates that finding and a brief statement of the 
reasons supporting the finding into the rulemaking document. See 5 
U.S.C. 553(b)(3)(B), and 49 U.S.C. 60102(b)(6)(C). These statutes are 
incorporated into PHMSA's pipeline safety regulations at 49 CFR 
190.311, which allow PHMSA to modify aspects of an IFR in issuing the 
final rule after receiving and reviewing public comments, as well as 
any other relevant documents.
    The good cause exception was made part of the APA to address 
certain scenarios encountered by federal agencies where delay would 
jeopardize their assigned missions to protect the public. Advance 
notice and comment rulemaking procedures may be deemed impracticable 
when an agency cannot both follow the notice-and-comment procedure and 
still achieve its statutory objectives. The ``impracticability 
exception'' to normal notice and comment procedures is an important 
exception that is used where delay would do real harm.
    In this instance, the PIPES Act established a 60-day timeline for 
issuing these temporary or interim emergency-order regulations. This 
statutory deadline makes notice and comment impracticable, and not in 
the public interest. The final details of the PIPES Act were not known 
to PHMSA until after the statute was enacted, and the PIPES Act only 
affords PHMSA 60 days to issue temporary regulations implementing 
emergency order authority. Thus, allotting time for notice

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and public comment (the standard comment period for a notice of 
proposed rulemaking is 60 days) prior to issuing temporary regulations 
would thwart PHMSA's ability to manage the schedule laid out by 
Congress and impede the due and timely execution of the agency's 
functions. Furthermore, section 16 of the PIPES Act directs a specific 
regulatory outcome--establishing a standard for determining when an 
emergency order is warranted, identifying particular factors for the 
agency to consider, and directing the agency to follow specific 
consultation requirements--for which PHMSA has no discretion.

IV. Summary of Proposals in This IFR

    This IFR establishes interim procedures to implement the expanded 
emergency order enforcement authority conferred by the PIPES Act. These 
procedures will apply only when PHMSA determines that an unsafe 
condition or practice is causing an imminent hazard. PHMSA may issue an 
emergency order without advance notice or opportunity for a hearing. 
The emergency order may impose emergency restrictions, prohibitions, 
and safety measures on owners and operators of gas or hazardous liquid 
pipeline facilities, but only to the extent necessary to abate the 
imminent hazard.

Section-by-Section Analysis

    PHMSA proposes to amend part 190 of title 49, Code of Federal 
Regulations. Below is an analysis of the regulatory provisions.

Section 190.3 Definitions

    This section contains a comprehensive set of definitions for part 
190. PHMSA will add two definitions in order to clarify the meaning of 
these important terms as they are used in the text of this IFR.
    Emergency order means a written requirement imposing an emergency 
restriction, prohibition, or safety measure on owners and operators of 
gas or hazardous liquid pipeline facilities without prior notice or an 
opportunity for a hearing.
    As defined by statute, imminent hazard means ``the existence of a 
condition relating to a gas or hazardous liquid pipeline facility that 
presents a substantial likelihood that death, serious illness, severe 
personal injury, or a substantial endangerment to health, property, or 
the environment may occur before the reasonably foreseeable completion 
date of a formal proceeding begun to lessen the risk of such death, 
illness, injury, or endangerment.''

Section 190.5 Service

    This section contains procedures for effective service of 
enforcement actions issued under Part 190 and is amended to 
specifically exclude service of emergency orders from this section. 
Service of emergency orders will be defined in Section 190.236 
Emergency Orders.

Section 190.236 Emergency Orders

    A new section 190.236 is added to authorize the Administrator to 
issue emergency orders upon determining that an unsafe condition or 
practice, or a combination of unsafe conditions and practices, 
constitutes or is causing an imminent hazard. This tool is necessary to 
abate conditions or other widespread circumstances that pose a 
substantial likelihood that death, serious illness, severe personal 
injury, or a substantial endangerment to health, property, or the 
environment that may occur before the reasonably foreseeable completion 
date of a formal proceeding begun to lessen the risk of such death, 
illness, injury, or endangerment. The order must articulate a 
sufficient factual basis to address the emergency situation warranting 
prompt corrective action.
    Paragraph (a) outlines the critical elements that must be 
established in an emergency order prior to issuance. Principally, the 
order must be in writing and describe the violation, condition or 
practice that is causing the imminent hazard; specify the entities 
subject to the order; enumerate the restrictions, prohibitions, or 
safety measures imposed; explain the standards and procedures for 
obtaining relief from the order; explain how the order is circumscribed 
to abate the specific imminent hazard and why the authorities under 
sections 60112 and 60117(1) are insufficient; and explain how certain 
considerations were taken into account. In other words, the order must 
be narrowly tailored to the discrete and specific safety hazard and 
identify the corrective action(s) needed to remedy the hazard.
    Paragraph (d) outlines how service of an emergency order will be 
achieved. The Administrator will publish emergency orders in the 
Federal Register as soon as practicable. In addition, OPS will post 
emergency orders on its Web site. The emergency order will contain 
filing and service requirements, including the address of the DOT 
Docket Office and all persons to be served with petitions for review.

Section 190.237 Petitions for Review

    A new section 190.237 is added to provide an affected party with 
administrative due process rights to seek redress of an emergency 
order, and thus, 49 CFR 190.237 sets forth the procedures for filing a 
petition for administrative review of an emergency order. The petition: 
(1) Must be in writing; (2) specifically state the section(s) of the 
emergency order being appealed; (3) include all information and 
arguments in support of the appellant's petition; and (4) follow 
appropriate service procedures. The petitioner may request a formal or 
an informal hearing. If a petitioner requests review of the order under 
section 554 of title 5, the party must detail the material facts in 
dispute giving rise to the hearing request. This process will allow 
PHMSA and the aggrieved entity to present evidence and argument in 
relation to the emergency order. If the petitioner does not request a 
formal hearing, the petition will be handled informally through the 
Office of Pipeline Safety unless the Associate Administrator determines 
that there is a reasonable basis for handling the petition through the 
formal hearing process.
    Paragraphs (c) sets out the Associate Administrator for Pipeline 
Safety's responsibilities. These include: (1) Upon receipt of a 
petition for review of an emergency order that includes a formal 
hearing request and states material facts in dispute, immediately 
assigning the petition to the Office of Hearings, DOT; (2) for a 
petition for review of an emergency order that does not include a 
formal hearing request or fails to state material facts in dispute, 
issuing an administrative decision on the merits within 30 days of 
receipt of the petition (the Associate Administrator's decision will 
constitute the agency's final decision); (3) if more than one petition 
for review of an emergency order is received, and those orders are 
substantially similar, the Associate Administrator may consolidate the 
petitions for the purposes of complying with 49 CFR 190.237; and (4) in 
the event that a petitioner does not request a formal hearing, the 
Associate Administrator may reassign the petition to the Office of 
Hearings, DOT, when there is a reasonable basis for the reassignment.
    Paragraphs (d) through (k) set out the administrative hearing 
procedures that the Department's Office of Hearings would employ. Upon 
receiving the petition from PHMSA, the Chief Administrative Law Judge 
assigns it to an Administrative Law Judge (ALJ), who schedules and 
conducts an ``on the record'' hearing under 5 U.S.C. 554. Given the 
statutory language of the PIPES Act, a petitioner must be afforded

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an opportunity for a formal hearing that addresses the merits of a 
petition to ensure that a record is created in a proceeding that forms 
the basis for the final agency decision and judicial review, if 
necessary.
    Paragraph (d)(1) provides that an ALJ may administer oaths and 
affirmations, issue subpoenas as authorized by PHMSA's regulations, 
enable the parties to engage in discovery, and conduct settlement 
conferences and hearings to resolve disputed factual issues. PHMSA 
expects ALJs to conduct efficient and expeditious proceedings, 
including controlling discovery actions, to enable the parties to 
obtain relevant information and present material arguments at a hearing 
within the time parameters established.
    Paragraph (g) requires the ALJ to issue a report and recommendation 
when the record is closed. The decision must contain factual findings 
and legal conclusions based on legal authorities and evidence presented 
on the record. Critically, the decision must be issued within 30 days 
after the Chief Counsel receives the petition.
    PHMSA notes that Congress mandated that the Secretary must decide a 
petition for review within 30 days of its receipt, unless the Secretary 
determines in writing that an imminent hazard continues to exist, 
extending the order, pending review of the petition. See 49 U.S.C. 
60117(o)(5). Therefore, paragraph (j) provides that the emergency order 
will no longer be effective if no agency decision has been rendered on 
the petition within 30 days of the receipt of the petition, unless the 
Administrator determines in writing that the imminent hazard continues 
to exist. The order would then remain in effect pending the disposition 
of the petition unless stayed or modified by the Administrator. PHMSA 
maintains that this provision is necessary to ensure that the order is 
extended until the imminent hazard is abated.
    Paragraph (h) provides that an aggrieved party may file a petition 
for reconsideration of the ALJ's report and recommendation with the 
Associate Administrator for Pipeline Safety within one day of the 
issuance of the decision. The Associate Administrator is charged with 
issuing a final agency decision on the petition for reconsideration 
within three days of service of the final pleading, but no later than 
30 days after receipt of the original petition for review.
    Judicial review would be available in an appropriate District Court 
and afforded expedited consideration. All parties should note that the 
filing of a petition will not stay or modify the force and effect of 
final agency decision unless otherwise ordered.
    Paragraph (k) specifies the computation of time in the 
adjudications process.

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Interim Final Rule

    PHMSA's general authority to publish this IFR and prescribe 
pipeline safety regulations is codified at 49 U.S.C. 60101, et seq. 
Section 16 of the PIPES Act authorizes the Secretary of Transportation 
to establish procedures for the issuance of emergency orders that will 
be used to address an unsafe condition or practice, or combination of 
unsafe conditions or practices that pose an imminent hazard to public 
health and safety or the environment. The Secretary has delegated the 
responsibility to exercise this authority to the Administrator. See 49 
CFR 1.97(a).

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

    This IFR is a non-significant regulatory action under section 3(f) 
of Executive Order 12866, 58 FR 51735 (Oct. 4, 1993) and 13563, 76 FR 
3821 (Jan. 21, 2011), and; therefore, was not reviewed by the Office of 
Management and Budget (OMB). This IFR is non-significant under the 
Regulatory Policies and Procedures of the Department of Transportation. 
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.'' 
This IFR solely affects agency enforcement procedures to implement the 
emergency order provisions of the law, and therefore this rulemaking 
results in no additional burden or compliance costs to industry. 
However, under circumstances warranting that PHMSA issue an emergency 
order, there may be incremental compliance actions and costs to 
operators and benefits related to the immediate lessening of the 
imminent risks of death, serious illness, severe personal injury, or a 
substantial endangerment to health, property, or the environment across 
the entirety of affected populations and environments. In the case of 
existing regulatory provisions, costs and benefits are attributable to 
the original rulemaking.
Executive Order 13132
    This IFR has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). 64 FR 
43255 (Aug. 10, 1999). This IFR 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.
    Further, this IFR does not have an impact on federalism that 
warrants preparation of a federalism assessment.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 60101 et seq., requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule will not have a significant 
impact on a substantial number of small entities. Because this rule 
does not directly impact any entity, PHMSA determined that this IFR 
will not have a significant impact on a substantial number of small 
entities.

D. Paperwork Reduction Act

    PHMSA has analyzed this IFR in accordance with the Paperwork 
Reduction Act of 1995 (PRA). Pub. L. 96-511 (Dec. 11, 1980). The PRA 
requires federal agencies to minimize paperwork burden imposed on the 
American public by ensuring maximum utility and quality of federal 
information, ensuring the use of information technology to improve 
Government performance, and improving the federal government's 
accountability for managing information collection activities. This IFR 
contains no new information collection requirements subject to the PRA. 
However, following issuance of an emergency order, PHMSA may require 
the issuance of status updates, reports, or other information. PHMSA 
seeks comment on the potential paperwork burdens associated with this 
rulemaking.

E. Executive Order 13175

    PHMSA has analyzed this IFR according to the principles and 
criteria in Executive Order 13175 (``Consultation and Coordination with 
Indian Tribal Governments''). 65 FR 67249 (Nov. 9, 2000). Because this 
IFR will not significantly or uniquely affect

[[Page 70985]]

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.

F. Executive Order 13211

    This IFR is not a significant energy action under Executive Order 
13211. 66 FR 28355 (May 18, 2001). 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 IFR has not been designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action.

G. Unfunded Mandates Reform Act of 1995

    The proposal in this IFR would not impose unfunded mandates under 
the Unfunded Mandates Act of 1995. Pub. L. 104-4 (Dec. 4, 1995). The 
IFR would not result in annual costs of $100 million or more, in the 
aggregate, to any of the following: State, local, or Indian tribal 
governments, or the private sector, and is the least burdensome 
alternative to achieve the objective of the IFR.

H. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires that federal agencies analyze proposed actions to determine 
whether an action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order federal agencies to conduct an environmental review considering 
(1) the need for the proposed action (2) alternatives to the proposed 
action (3) probable environmental impacts of the proposed action and 
alternatives and (4) the agencies and persons consulted during the 
consideration process. 40 CFR 1508.9(b).
1. Purpose and Need
    Congress enacted the PIPES Act, in part, to address safety issues 
affecting multiple or all owners/operators of gas or hazardous liquid 
pipeline facilities
2. Alternatives
    Because this IFR addresses a Congressional mandate, we have limited 
latitude in defining alternative courses of action. The option of 
taking no action would be both inconsistent with Congress' direction 
and undesirable from the standpoint of safety and enforcement. Failure 
to implement the new authority would continue PHMSA's inability to 
address conditions or practices constituting an imminent risk of death, 
serious illness, severe personal injury, or a substantial endangerment 
to health, property, or the environment.
3. Analysis of Environmental Impacts
    There are no direct environmental impacts to analyze. However, the 
issuance of an emergency order represents a reduction in imminent risk 
of death, serious illness, severe personal injury, or a substantial 
endangerment to health, property, or the environment that cannot be 
lessened timely enough through a formal proceeding begun to lessen the 
risk.

I. Regulation Identifier Number

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
spring and fall of each year. The RIN contained in the heading of this 
document can be used to cross-reference this action with the United 
Agenda.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement published in the Federal Register, see 
65 FR 19477-78 (April 11, 2000), or you may visit http://www.regulations.gov.

List of Subjects in 49 CFR Part 190

    Emergency Orders; Administrative practice and procedures.
    For the reasons discussed in the preamble, PHMSA amends 49 CFR 
Subchapter C as follows:

PART 190--PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES

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

     Authority: 49 U.S.C. 60101 et seq.


0
 2. In Sec.  190.3, new definitions for ``Emergency Order'' and 
``Imminent Hazard'' are added in alphabetical order to read as follows:


Sec.  190.3  Definitions.

* * * * *
    Emergency order means a written order imposing restrictions, 
prohibitions, or safety measures on affected entities.
* * * * *
    Imminent hazard means the existence of a condition relating to a 
gas or hazardous liquid pipeline facility that presents a substantial 
likelihood that death, serious illness, severe personal injury, or a 
substantial endangerment to health, property, or the environment may 
occur before the reasonably foreseeable completion date of a formal 
administrative proceeding begun to lessen the risk of such death, 
illness, injury or endangerment.
* * * * *

0
3. In Sec.  190.5, paragraph (a) is revised to read as follows:


Sec.  190.5  Service.

    (a) Each order, notice, or other document required to be served 
under this part, with the exception of emergency orders under Sec.  
190.236, 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.
* * * * *

0
 4. Add Sec.  190.236 to subpart B to read as follows:


Sec.  190.236  Emergency orders.

    (a) Determination of imminent hazard. When the Administrator 
determines that a violation of a provision of the Federal pipeline 
safety laws, or a regulation or order prescribed under those laws, an 
unsafe condition or practice, or a combination of unsafe conditions and 
practices, constitutes or is causing an imminent hazard, as defined in 
Sec.  190.3, the Administrator may issue or impose an emergency order, 
without advance notice or an opportunity for a hearing. The basis for 
any action taken under this section will be set forth in writing that 
describes:
    (1) The violation, condition, or practice that constitutes or is 
causing the imminent hazard;
    (2) Those subject to the order;
    (3) The restrictions, prohibitions, or safety measures imposed;
    (4) The standards and procedures for obtaining relief from the 
order;
    (5) How the order is tailored to abate the imminent hazard and the 
reasons the authorities under 49 U.S.C. 60112 and 60117(l) are 
insufficient to do so;
    (6) How the considerations listed in paragraph (c) of this section 
were taken into account.
    (b) Consultation requirement. In evaluating the considerations 
under paragraph (c), the Administrator shall consult as the 
Administrator determines appropriate, with appropriate Federal 
agencies, State agencies, and other entities knowledgeable in pipeline 
safety or operations.

[[Page 70986]]

    (c) Considerations. Prior to issuing an emergency order, the 
Administrator must consider the following:
    (1) The impact of the emergency order on public health and safety;
    (2) The impact, if any, of the emergency order on the national or 
regional economy or national security;
    (3) The impact of the emergency order on the ability of owners and 
operators of pipeline facilities to maintain reliability and continuity 
of service to customers; and
    (4) The result of consultations with appropriate Federal agencies, 
State agencies, and other entities knowledgeable in pipeline safety or 
operations.
    (d) Service. The Administrator will publish emergency orders in the 
Federal Register, as soon as practicable upon issuance. In addition, 
OPS will post emergency orders on its Web site. The emergency order 
will contain filing and service requirements, including the address of 
DOT Docket Operations and of all persons to be served with petitions 
for review.

0
5. Add Sec.  190.237 to subpart B to read as follows:


Sec.  190.237  Petitions for review.

    (a) Requirements. An entity that is subject to and aggrieved by an 
emergency order may petition the Administrator for review to determine 
whether the order will remain in place, be modified, or terminated. A 
petition for review must:
    (1) Be in writing;
    (2) State with particularity each part of the emergency order that 
is sought to be amended or rescinded and include all information, 
evidence and arguments in support thereof;
    (3) State whether a formal hearing in accordance with 5 U.S.C. 554 
is requested, and, if so, the material facts in dispute giving rise to 
the request for a hearing; and,
    (4) Be filed and served in accordance with paragraph (f) of this 
section.
    (b) Response to the petition for review. An attorney designated by 
the Office of Chief Counsel may file and serve, in accordance with 
paragraph (f) of this section, a response, including appropriate 
pleadings, within five days of receipt of the petition by the Chief 
Counsel.
    (c) Associate Administrator for Pipeline Safety Responsibilities--
(1) Hearing requested. Upon receipt of a petition for review of an 
emergency order that includes a formal hearing request and states 
material facts in dispute, the Associate Administrator for Pipeline 
Safety will immediately assign the petition to the Office of Hearings, 
DOT. Unless the Associate Administrator for Pipeline Safety issues an 
order stating that the petition fails to set forth material facts in 
dispute and will be decided under paragraph (c)(2) of this section, a 
petition for review including a formal hearing request will be deemed 
assigned to the Office of Hearings three days after the Associate 
Administrator for Pipeline Safety receives it.
    (2) No hearing requested. For a petition for review of an emergency 
order that does not include a formal hearing request or fails to state 
material facts in dispute, the Associate Administrator for Pipeline 
Safety must issue an administrative decision on the merits within 30 
days of receipt of the petition. The Associate Administrator for 
Pipeline Safety's decision constitutes the agency's final decision.
    (3) Consolidation. If the Associate Administrator for Pipeline 
Safety receives more than one petition for review of an emergency 
order, and those petitions share common issues of law or fact, the 
Associate Administrator for Pipeline Safety may consolidate those 
petitions for the purposes of complying with this section.
    (4) Agency authority to request a formal hearing. In the event that 
a petitioner does not request a formal hearing, the Associate 
Administrator for Pipeline Safety may still reassign the petition to 
the Office of Hearings, DOT, when a reasonable basis exists for the 
reassignment.
    (d) Hearings. Formal hearings must be conducted by an 
Administrative Law Judge assigned by the Chief Administrative Law Judge 
of the Office of Hearings. The Administrative Law Judge may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided by the appropriate agency 
regulations (49 CFR 190.7 and 49 U.S.C. 60117);
    (3) Adopt the relevant Federal Rules of Civil Procedure for the 
United States District Courts for the procedures governing the hearings 
when appropriate;
    (4) Adopt the relevant Federal Rules of Evidence for United States 
Courts and Magistrates for the submission of evidence when appropriate;
    (5) Take or cause depositions to be taken;
    (6) Examine witnesses at the hearing;
    (7) Rule on offers of proof and receive relevant evidence;
    (8) Convene, recess, adjourn or otherwise regulate the course of 
the hearing;
    (9) Hold conferences for settlement, simplification of the issues, 
or any other proper purpose; and,
    (10) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of an issue raised.
    (e) Parties. The petitioner may appear and be heard in person or by 
an authorized representative. PHMSA will be represented by an attorney 
designated by the Office of Chief Counsel.
    (f) Filing and service. (1) Each petition, pleading, motion, 
notice, order, or other document submitted in connection with an order 
issued under this subpart must be filed (commercially delivered or 
submitted electronically) with: U.S. Department of Transportation, 
Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 
New Jersey Avenue SE., Washington, DC 20590. All documents filed will 
be published on the Department's docket management Web site, http://www.regulations.gov. The emergency order must state the above filing 
requirements and the address of DOT Docket Operations.
    (2) Service. Each document filed in accordance with paragraph 
(f)(1) of this section must be concurrently served upon the following 
persons:
    (i) Associate Administrator for Pipeline Safety, OPS, Pipeline and 
Hazardous Materials Safety Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., East Building, Washington, 
DC 20590.
    (ii) Chief Counsel, PHC, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., East Building, Washington, DC 20590 (facsimile: 202-366-
7041).
    (iii) If the petition for review requests a formal hearing, the 
Chief Administrative Law Judge, U.S. Department of Transportation, 
Office of Hearings, M-20, Room E12-320, 1200 New Jersey Avenue SE., 
Washington, DC 20590 (facsimile: 202-366-7536).
    (iv) Service must be made personally, by commercial delivery 
service, or by electronic means if consented to in writing by the party 
to be served, except as otherwise provided herein. The emergency order 
must state all relevant service requirements and list the persons to be 
served and may be updated as necessary.
    (3) Certificate of service. Each order, pleading, motion, notice, 
or other document must be accompanied by a certificate of service 
specifying the manner in which and the date on which service was made.
    (4) If applicable, service upon a person's duly authorized 
representative,

[[Page 70987]]

agent for service, or an organization's president constitutes service 
upon that person.
    (g) Report and recommendation. The Administrative Law Judge must 
issue a report and recommendation at the close of the record. The 
report and recommendation must:
    (1) Contain findings of fact and conclusions of law and the grounds 
for the decision based on the material issues of fact or law presented 
on the record;
    (2) Be served on the parties to the proceeding; and
    (3) Be issued no later than 25 days after receipt of the petition 
for review by the Associate Administrator of Pipeline Safety.
    (h) Petition for reconsideration. (1) A party aggrieved by the 
Administrative Law Judge's report and recommendation, may file a 
petition for reconsideration with the Associate Administrator of 
Pipeline Safety within one day of service of the report and 
recommendation. The opposing party may file a response to the petition 
for reconsideration within one day of service of a petition for 
reconsideration.
    (2) The Associate Administrator of Pipeline Safety must issue a 
final agency decision within three days of service of the final 
pleading outlined in paragraph (h)(1) of this section, but no later 
than 30 days after receipt of the original petition for review.
    (3) The Associate Administrator of Pipeline Safety's decision on 
the merits of a petition for reconsideration constitutes the agency's 
final decision.
    (i) Judicial review. After the issuance of a final agency decision 
pursuant to paragraph (c)(2) or (h)(3) of this section, or the issuance 
of a written determination by the Administrator pursuant to paragraph 
(j) of this section, a person subject to, and aggrieved by, an 
emergency order issued under section 190.236 may seek judicial review 
of the order in the appropriate District Court of the United States. 
The filing of an action seeking judicial review does not stay or modify 
the force and effect of the agency's final decision under paragraph 
(c)(2) or (h)(3) of this section, or the written determination under 
paragraph (j) of this section, unless stayed or modified by the 
Administrator.
    (j) Expiration of order. If the Associate Administrator of Pipeline 
Safety, or the Administrative Law Judge, where appropriate, has not 
disposed of the petition for review within 30 days of receipt, the 
emergency order will cease to be effective unless the Administrator 
issuing the emergency order determines, in writing, that the imminent 
hazard providing a basis for the emergency order continues to exist.
    (k) Time. In computing any period of time prescribed by this part 
or by an order issued by the Administrative Law Judge, the day of 
filing of the petition for review or of any other act, event, or 
default from which the designated period of time begins to run will not 
be included. The last day of the period so computed will be included, 
unless it is a Saturday, Sunday, or Federal holiday, in which event the 
period runs until the end of the next day which is not one of the 
aforementioned days.

    Issued in Washington, DC, on October 6, 2016, under authority 
delegated in 49 CFR 1.97.
Marie Therese Dominguez,
Administrator.
[FR Doc. 2016-24788 Filed 10-13-16; 8:45 am]
 BILLING CODE 4910-60-P


