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48112 Federal Register / Vol. 77, No. 156/ Monday, August 13, 2012 / Proposed Rules

section 1404 of the Health Care andEducation Reconciliation Act of 2010(HCERA), Public Law 111–152 (124 Stat.1029 (2010)).

Need for Correction

As published, REG–112805–10,contains an error that may prove to bemisleading and is in need of

clarification.Correction of Publication

Accordingly, the publication of thenotice of public hearing on notice ofproposed rulemaking by cross-referenceto temporary regulations (REG–112805–10) which was the subject of FR Doc.2012–19074, is corrected as follows:

On page 46653, column 2, in thepreamble, under the caption ADDRESSES,line five, the language ‘‘DC 20224. SendSubmissions to’’ is corrected to read‘‘DC 20224. Due to building securityprocedures, visitors must enter at the

Constitution Avenue entrance. Inaddition, all visitors must present photoidentification to enter the building.Send submissions to’’.

LaNita Van Dyke,

Chief, Publications and Regulations Branch,Legal Processing Division, Associate ChiefCounsel, Procedure and Administration.

[FR Doc. 2012–19730 Filed 8–10–12; 8:45 am]

BILLING CODE 4830–01–P

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials

Safety Administration

49 CFR Parts 190, 192, 193, 195, and199

[Docket No. PHMSA–2012–0102]

RIN 2137–AE29

Pipeline Safety: AdministrativeProcedures; Updates and TechnicalCorrections

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

ACTION: Notice of proposed rulemaking.

SUMMARY: This Notice of ProposedRulemaking updates the administrativecivil penalty maximums for violation ofthe pipeline safety regulations toconform to current law, updates theinformal hearing and adjudicationprocess for pipeline enforcementmatters to conform to current law,amends other administrative proceduresused by PHMSA personnel, and makesother technical corrections and updatesto certain administrative procedures.The proposed amendments do not

impose any new operating,maintenance, or other substantiverequirements on pipeline owners oroperators.

DATES: Persons interested in submittingwritten comments on the ruleamendments proposed in this documentmust do so by September 12, 2012.PHMSA will consider comments filedafter this date so far as practicable.ADDRESSES: Comments should referenceDocket No. PHMSA–2012–0102 andmay be submitted in the following ways:

• Web Site: http:// www.regulations.gov. This site allowsthe public to enter comments on anyFederal Register notice issued by anyagency. Follow the online instructionsfor submitting comments.

• Fax: 1–202–493–2251.• Mail: U.S. Department of

Transportation (DOT) DocketOperations Facility (M–30), WestBuilding, 1200 New Jersey Avenue SE.,

Washington, DC 20590.• Hand Delivery: DOT Docket

Operations Facility, West Building,Room W12–140, 1200 New JerseyAvenue SE., Washington, DC, 20590

between 9:00 a.m. and 5:00 p.m.,Monday through Friday, except Federalholidays

Instructions: Identify the docketnumber, PHMSA–2012–0102, at the

beginning of your comments. If you mailyour comments, submit two copies. Inorder to confirm receipt of yourcomments, include a self-addressed,stamped postcard.

Note: All comments are postedelectronically in their original form, withoutchanges or edits, including any personalinformation.

Privacy Act Statement

Anyone can search the electroniccomments associated with any docket

by the name of the individualsubmitting the comment (or signing thecomment, if submitted on behalf of anassociation, business, labor union, etc.).DOT’s complete Privacy Act Statementwas published in the Federal Registeron April 11, 2000, (65 FR 19477).FOR FURTHER INFORMATION CONTACT:

James Pates, PHMSA, Office of ChiefCounsel, 202–366–0331,

[email protected]; Kristin T.L.Baldwin, Office of Chief Counsel, 202–366–6139, [email protected]; orLarry White, PHMSA, Office of ChiefCounsel, 202–366–9093,[email protected].

SUPPLEMENTARY INFORMATION:

I. Purpose and Scope

Effective January 3, 2012, the PipelineSafety, Regulatory Certainty, and Job

Creation Act of 2011 (Pub. L. 112–90)(the Act) increased the maximumadministrative civil penalties forviolation of the pipeline safety laws andregulations to $200,000 per violation perday of violation, with a maximum of$2,000,000 for a related series ofviolations. The Act also imposed certainrequirements for the conduct of

informal administrative enforcementhearings including, among other things:convening hearings before a presidingofficial, an attorney on the staff of theDeputy Chief Counsel; providing anopportunity for a respondent to arrangefor a hearing transcript; ensuring aseparation of functions between agencyemployees involved with theinvestigation or prosecution of anenforcement case and those involved indeciding the case; and prohibiting exparte communications. The Act alsoprovided PHMSA with newenforcement authority for oil spill

response plan compliance under section4202 of the Oil Pollution Act of 1990 (33U.S.C. 1321(j)).

In accordance with the Act, PHMSAproposes to: update the administrativecivil penalty maximums and theinformal hearing process for pipelineenforcement matters to conform tocurrent law and to amend otheradministrative procedures used byPHMSA personnel; amend the criminalenforcement provisions to conform tocurrent law and practice; makecorrections to the special permitprovisions in the procedures for

adoption of rules; implement the newenforcement authority for Part 194 oilspill response plans; and make certaintechnical amendments and corrections.The proposed amendments do notimpose any new operating,maintenance, or other substantiverequirements on pipeline owners oroperators.

II. Proposed Amendments to Part 190

A. Administrative Civil Penalties andthe Informal Hearing and EnforcementProcess

Maximum administrative civil

penalties. Section 2 of the PipelineSafety Act of 2011 increased themaximum administrative civil penaltiesfor violation of the pipeline safety lawsand regulations to $200,000 perviolation per day, with a maximum of$2,000,000 for a related series ofviolations. PHMSA proposes to amend49 CFR 190.223 to reflect this increase.PHMSA proposes to apply the newadministrative civil penalty maximumsin cases involving violations that occuror are discovered after January 3, 2012.The proposed amendment also removes

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48113Federal Register / Vol. 77, No. 156/ Monday, August 13, 2012 / Proposed Rules

outdated penalty provisions forviolations involving offshore gatheringlines and liquefied natural gas facilitiesand clarifies the applicability ofpenalties for violations of the terms ofan enforcement order.

Presiding Official. Section 20(a)(1)(A)of the Act requires PHMSA to issueregulations requiring hearings

conducted under 49 U.S.C. chapter 601for the issuance of corrective actionorders (CAOs), safety orders,compliance orders, and civil penaltiesto be convened before a presidingofficial. The pipeline enforcementprocess found in 49 CFR part 190, usedsuccessfully by PHMSA for many years,already includes the use of such apresiding official for informal hearings.The amendment proposes to codifyexisting practice. This process providespipeline operators with the right toreceive notice of any alleged violationsidentified during an inspection or

investigation; to respond to the notice,including the opportunity to request aninformal hearing or otherwise contestany alleged violations; to examine theevidence; to be represented by counsel;to provide any relevant information tothe proposed penalty amount; and topetition for reconsideration of theagency’s decision.

Although current regulations alreadyprovide that hearings are held before apresiding official, section 20(a)(2) of theAct requires that PHMSA issueregulations both defining the term‘‘presiding official’’ and requiring thepresiding official to be an attorney on

the staff of the Deputy Chief Counselwho is not engaged in investigative orprosecutorial functions. PHMSAproposes to conform to this requirement

by amending the existing definition of‘‘presiding official’’ in § 190.3 and byadding a new §190.212 concerning thepresiding official’s powers and duties.

The proposed regulations will specifythe powers and duties of the presidingofficial and provide that, if thededicated presiding official isunavailable, the Deputy Chief Counselmay delegate the duties of the presidingofficial to another attorney in the Office

of Chief Counsel who has no priorinvolvement in the case and who will besupervised by the Deputy ChiefCounsel. PHMSA also proposes toamend § 190.211(a) to clarify that thissection applies to any hearing relating tocivil penalty assessments, complianceorders, safety orders, or CAOs.

Hearing transcript. Section 20(a)(1)(B)of the Act requires PHMSA to issueregulations providing the opportunityfor any party requesting a hearing toarrange for a transcript of the hearing, atthe party’s expense. Although it is

currently PHMSA’s practice to permit arespondent to make arrangements for atranscript at the respondent’s cost, thisis not explicitly stated in Part 190.PHMSA proposes to amend §190.211 toprovide that a respondent may arrangefor a hearing to be recorded ortranscribed at its own cost. PHMSAfurther proposes that an accurate copy

of the recording or transcript must besubmitted for the official record.

Separation of functions and prohibition on ex partecommunications. Section 20(a)(1)(D) ofthe Act requires PHMSA to issueregulations implementing a separationof functions between agency employeesinvolved with the investigation andprosecution of an enforcement case andthose involved in deciding the case.PHMSA’s current practice is to ensurethat personnel involved in deciding anenforcement case are not involved indetermining the allegations to be made

in that case or preparing the Notice ofProbable Violation or other type ofenforcement action. On July 12, 2011,PHMSA explained its separation offunctions policy in a statementpublished in the Federal Register (76FR 40820). In order to conform Part 190to the current law and existing agencypractice, PHMSA proposes to add a new§ 190.210, titled: ‘‘Separation offunctions.’’ Paragraph (a) of the newsection proposes that an agencyemployee involved in the investigationor prosecution of an enforcement casemay not participate in the decision ofthat case or a factually related case, but

may participate as a witness or counselat a hearing, as set forth in subpart B.Likewise, paragraph (a) proposes torequire that an agency employee whoprepares the decision in an enforcementcase may not have served in aninvestigative or prosecutorial capacityin that case or a factually related case.

Section 20(a)(1)(E) of the Act requiresPHMSA to issue regulations prohibitingex parte communications that arerelevant to the question to be decided inan enforcement case. An ex partecommunication is a communication

between a party to a pending case and

the decision maker regarding an issue inthat case occurring outside the presenceof the other parties and without priornotice and opportunity for all parties toprovide comment or rebuttal. In theaforementioned July 12, 2011, PHMSApolicy statement discussed earlier inthis preamble, the agency explained thatex parte communications with thepresiding official are not permitted bythe operator, its counsel, or agency staffinvolved in the investigation andprosecution of the case. This prohibitionapplies to all communication regarding

information, facts, or argumentsinvolving an issue in the case, but notto routine administrative matters, suchas scheduling the hearing orclarification of the enforcement process.

To incorporate this prohibition intoPart 190, PHMSA proposes to addparagraph (b) to the newly created§ 190.210 enjoining any party to an

enforcement proceeding (e.g.,respondent, agency employees servingin an investigative or prosecutorialcapacity, representatives of either party,etc.) from communicating privately withthe decision maker concerninginformation that is material to thequestion to be decided. Notwithstandingthis addition, parties would be allowedto communicate freely with thepresiding official regarding proceduralor administrative issues, such asscheduling a hearing.

Expedited review of corrective actionorders. Section 20(a)(1)(C) of the Actrequires PHMSA to issue regulationsensuring ‘‘expedited review’’ of anyCAO issued without prior noticepursuant to 49 U.S.C. 60112(e). Section20(a)(3) also requires the agency todefine the term ‘‘expedited review’’ forpurposes of this regulation. Theprocedural regulations for issuance of aCAO after notice and opportunity forhearing are outlined in § 190.233. Underparagraph (b) of that regulation, PHMSAmay waive the requirement for priornotice and opportunity for hearing if afailure to do so would result in thelikelihood of serious harm to life,property, or the environment. In cases

where an order is issued without priornotice, paragraph (b) already requiresthat an opportunity for a hearing beprovided to the respondent as soon asis practicable after issuance of the order.PHMSA typically schedules hearingswithin 10 calendar days, except wherethe respondent requests postponementfor good cause.

The current process works well bothto ensure that an operator has a timelyopportunity for a post-order hearing andthat PHMSA acts expeditiously torender a final determination on theCAO. Therefore, PHMSA proposes to

conform paragraph § 190.233(b) tocurrent law by defining the term‘‘expedited review’’ for purposes of aCAO issued without prior notice. In thisproposed ‘‘expedited review,’’ therespondent must either request suchreview by answering the order inwriting or by requesting a hearing. TheAssociate Administrator, as soon aspracticable following issuance of theorder, will decide whether the ordershould remain in effect or beterminated. Once the determination isissued, the expedited review process is


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violation of a special permit, as a specialpermit is an agency order that isenforceable through a NOPV.

3. Amending §190.239 to include aprocess for filing petitions forreconsideration on safety orders.

4. Amending §190.337 to removeparagraph (b), relating to thereconsideration of petitions for

rulemaking, to remove the target timesfor the Associate Administrator to act onpetitions for reconsideration, to conformto actual practice.

5. Amending §190.341, relating tospecial permits, to clarify that PHMSAmay issue a NOPV for violations of aspecial permit.

D. Technical Amendments andCorrections

PHMSA proposes to make thefollowing technical amendments andcorrections to Part 190:

1. Amending Part 190 to remove allreferences to 49 U.S.C. 5101, to updateWeb sites addresses, telephonenumbers, and postal addresses, and toeliminate other incorrect references.

2. Amending Part 190 to remove theterm ‘‘PHMSA’’ from the phrases‘‘Administrator, PHMSA’’ and ‘‘ChiefCounsel, PHMSA’’ throughout Part 190and remove the term ‘‘OPS’’ from thephrase ‘‘Associate Administrator, OPS.’’

3. Amending §190.3 to define theterms ‘‘Associate Administrator,’’ ‘‘ChiefCounsel,’’ ‘‘Day,’’ and ‘‘Operator.’’

4. Amending §190.7(d) to harmonizethe service of subpoenas with theservice of other documents under

§ 190.5 to reflect that service by hand,certified mail, or registered mail iscomplete upon mailing.

5. Amending §190.203(b)(6) and othersections to eliminate the exclusive useof the masculine pronouns ‘‘him’’ and‘‘his’’ or to define the term to include

both masculine and feminine.6. Amending §190.205 to clarify that

the Associate Administrator or his orher designee(s) issue warning letters andthat an operator may respond to awarning letter.

7. Amending §190.207(a) to clarifythat a NOPV may contain a combination

of warning items, allegations ofviolation, proposed civil penalties, andproposed compliance orders for aprobable violation of section 4202 of theOil Pollution Act of 1990 (33 U.S.C.1321(j)).

8. Amending §190.207(c) to clarifythat the Associate Administrator or hisor her designee(s) may amend a NOPV

but must provide an additionalopportunity for response.

9. Amending §190.209(a)(1), relatingto response options to NOPVs, to clarifythat if an operator responds by paying

a proposed civil penalty, such actionserves to close only that particularallegation of violation and not the entirecase.

10. Amending § 190.209(a) to clarifythat in responding to a NOPV, anoperator may contest it in writingwithout requesting an in-personhearing.

11. Amending § 190.209(c) to correcta typographical error by changing thereference from paragraph (c) toparagraph (b).

12. Amending language in existing§ 190.215(a), which is moved to§ 190.249, to clarify that a petition forreconsideration must include anexplanation as to why the final ordershould be reconsidered, rather than anexplanation of why the ‘‘effectiveness’’of the final order should be stayed.

13. Amending § 190.223(a) to clarifythat the term ‘‘civil penalty’’ refers to‘‘administrative’’ civil penalties.

14. Amending § 190.227(a), relating tothe payment of penalties, to allowpayment of penalties under $10,000 to

be made via ‘‘www.pay.gov’’ and toprovide the correct address.

15. Amending §§ 190.233 to clarifythat CAOs are based upon adetermination that a particular facility‘‘is or would be hazardous,’’ whichtracks the statutory language in 49U.S.C. 60112, and to clarify that theclosure of a CAO ‘‘terminates’’ it, asopposed to ‘‘rescinding’’ it.

16. Amending §§190.239 and 190.341to italicize the questions at the

beginning of each lettered paragraph.

17. Amending §190.319, relating toextensions of time for rulemakingcomment periods, to clarify thatpetitions for extensions of time to filecomments must be addressed toPHMSA, as provided in §190.309.

18. Amending §190.321, relating tothe contents of written comments, toremove the requirement to submitmultiple copies of a rulemakingcomment.

19. Amending §190.327(b), relating tohearings on proposed rulemakings, toclarify that procedures for rulemakinghearings do not apply to other types of

hearings by deleting the phrase ‘‘underthis part’’ and inserting ‘‘under thissubpart.’’

20. Amending § 190.335(a) andremoving §190.338(c), relating to thereconsideration of petitions forrulemaking and appeals, to remove therequirement to submit multiple copiesof each.

21. For administrative purposes,§§ 190.241, 190.243, 190.245, and190.247 are added and reserved.

22. Amending §§ 192.603(c),193.2017(b), 195.402(b), and 199.101(b)

to change the reference to §190.237 to§ 190.206.

III. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for ThisRulemaking

This notice of proposed rulemaking ispublished under the authority of the

Federal Pipeline Safety Law (49 U.S.C.60101 et seq.). Section 60102 authorizesthe Secretary of Transportation to issueregulations governing design,installation, inspection, emergencyplans and procedures, testing,construction, extension, operation,replacement, and maintenance ofpipeline facilities. Section 60102(l) ofthe Federal Pipeline Safety Law statesthat the Secretary shall, to the extentappropriate and practicable, updateincorporated industry standards thathave been adopted as part of the Federalpipeline safety regulations.

B. Executive Order 12866, ExecutiveOrder 13563, and DOT RegulatoryPolicies and Procedures

This proposed rule is not considereda significant regulatory action underSection 3(f) of Executive Order 12866and, therefore, is not subject to review

by the Office of Management andBudget. This proposed rule is notsignificant under DOT RegulatoryPolicies and Procedures (44 FR 11034;Feb. 26, 1979). Executive Orders 12866and 13563 require agencies to regulatein the most cost effective manner, tomake a reasoned determination that the

benefits of the intended regulationjustify its costs, and to developregulations that impose the least burdenon society. As this proposed ruleinvolves agency practice and procedure,proposes to conform agency proceduralrequirements to current public law, anddoes not recommend imposing any newsubstantive requirements on operatorsor the public, it has no significanteconomic impact on regulated entities.

C. Executive Order 13132

This proposed rule has been analyzedin accordance with the principles andcriteria contained in Executive Order13132 (‘‘Federalism’’). This proposedrule does not introduce any regulationthat: (1) Has substantial direct effects onthe states, the relationship between thenational government and the states, orthe distribution of power andresponsibilities among the variouslevels of government; (2) imposessubstantial direct compliance costs onstate and local governments; or (3)preempts state law. Therefore, theconsultation and funding requirementsof Executive Order 13132 do not apply.


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Further, this proposed rule does nothave an impact on federalism thatwarrants preparation of a federalismassessment.

D. Executive Order 13175

This proposed rule has been analyzedin accordance with the principles andcriteria contained in Executive Order

13175 (‘‘Consultation and Coordinationwith Indian Tribal Governments’’). Thisproposed rule does not significantly oruniquely affect the communities of theIndian tribal governments; therefore, thefunding and consultation requirementsof Executive Order 13175 do not apply.

E. Executive Order 13211

This proposed rule is not a significantenergy action under Executive Order13211. It is not a significant regulatoryaction under Executive Order 12866 andis 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 ofthe Office of Information and RegulatoryAffairs as a significant energy action.

F. Regulatory Flexibility Act

As this proposed rule updates the Part190 procedures in accordance withcurrent public law and will have nodirect or indirect economic impacts forgovernment units, businesses, or otherorganizations, I certify that thisproposed rule will not have a significanteconomic impact on a substantialnumber of small entities.

G. Paperwork Reduction Act

This proposed rule contains no newinformation collection requirements oradditional paperwork burdens.Therefore, submitting an analysis of the

burdens to OMB pursuant to thePaperwork Reduction Act isunnecessary.

H. Unfunded Mandates Reform Act

This proposed rule does not imposeunfunded mandates under theUnfunded Mandates Reform Act of1995. It does not result in costs of $100

million or more, as adjusted forinflation, to either state, local or tribalgovernments, in the aggregate, or to theprivate sector, and is the least

burdensome alternative that achievesthe objective of the rule.

I. Environmental Assessment

As this proposed rule amends agencyadministrative practice and procedureand does not impose any newsubstantive environmental requirementson operators or the public or change theenvironmental status quo in any way,

there are no significant environmentalimpacts associated with this rule.

List of Subjects

49 CFR Part 190

Administrative Practice andprocedure; 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 andrecordkeeping requirements.

49 CFR Part 199

Drug testing, alcohol misuse.

For the reasons discussed in thepreamble, PHMSA proposes to amend49 CFR Subchapter C as follows:

PART 190—PIPELINE SAFETYPROGRAMS AND RULEMAKINGPROCEDURES

1. The authority citation for part 190is 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 thetitle to read:

PART 190—PIPELINE SAFETYENFORCEMENT AND REGULATORYPROCEDURES.

PART 190—[AMENDED]

3. In part 190, revise all references to‘‘Associate Administrator, PHMSA’’ toread ‘‘Associate Administrator’’.

4. In part 190, revise all references to‘‘Chief Counsel, PHMSA’’ to read ‘‘ChiefCounsel’’.

5. In part 190, revise all references to

‘‘Associate Administrator, OPS’’ to read‘‘Associate Administrator’’.

§ 190.1 [Amended]

6. In §190.1, paragraph (a) isamended by removing the phrase ‘‘and49 U.S.C. 5101 et seq. (the hazardousmaterial transportation laws)’’.

7. In §190.3, the definition of‘‘Presiding Official’’ is revised and thenew definitions for ‘‘AssociateAdministrator,’’ ‘‘Chief Counsel,’’‘‘Day,’’ and ‘‘Operator’’ are added inalphabetical order to read as follows:

§190.3 Definitions.

* * * * *Associate Administrator means the

Associate Administrator for PipelineSafety.

Chief Counsel means the ChiefCounsel of the PHMSA.

Day means a 24-hour period ending at11:59 p.m.

* * * * *Operator means any or all of the

owners or operators.

* * * * *Presiding official means the person

who conducts any hearing relating tocivil penalty assessments, complianceorders, safety orders, or correctiveaction orders and who has the dutiesand powers set forth in §190.212.

* * * * *8. In §190.7, paragraphs (a) and (d)

are revised to read as follows:

§ 190.7 Subpoenas; witness fees.

(a) The Administrator, the ChiefCounsel, or an official designated by theAdministrator may sign and issuesubpoenas individually on his or herown initiative at any time. Such timesmay include during an inspection orinvestigation or, upon request andadequate showing by a participant to anenforcement proceeding, that theinformation sought will materiallyadvance the proceeding.

* * * * *(d) Service of a subpoena upon the

person named in the subpoena isachieved by delivering a copy of thesubpoena to the person and by payingthe fees for one day’s attendance andmileage as specified by paragraph (g) ofthis section. Service of a subpoena canalso be made by certified or registeredmail to the person at the last knownaddress. Service is complete uponmailing. When a subpoena is issued atthe instance of any officer or agency ofthe United States, fees and mileage neednot be tendered at the time of service.Delivery of a copy of a subpoena andtender of the fees to a natural personmay be made by handing them to theperson, leaving them at the person’soffice with a person in charge, leaving

them at the person’s residence with aperson of suitable age and discretionresiding there, or by any methodwhereby actual notice is given to theperson and the fees are made availableprior to the return date.

* * * * *9. In §190.11, paragraphs (a) and (b)

are revised to read as follows:

§ 190.11 Availability of informal guidanceand interpretive assistance.

(a) Availability of telephonic andInternet assistance. PHMSA has


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established a Web site and a telephoneline to OPS headquarters whereinformation on and advice aboutcompliance with the pipeline safetyregulations specified in 49 CFR parts190–199 is available. The Web site andtelephone line are staffed by personnelfrom PHMSA’s OPS from 9:00 a.m.through 5:00 p.m., Eastern Time,

Monday through Friday, with theexception of Federal holidays. When thelines are not staffed, individuals mayleave a recorded voicemail message orpost a message on the OPS Web site.The telephone number for the OPSinformation line is (202) 366–4595 andthe OPS Web site can be accessed viathe Internet at http://phmsa.dot.gov/

pipeline (b) Availability of written

interpretations. A written regulatoryinterpretation, response to a question, oran opinion concerning a pipeline safetyissue may be obtained by submitting a

written request to the Office of PipelineSafety (PHP–30), PHMSA, U.S.Department of Transportation, 1200New Jersey Avenue SE., Washington,DC 20590–0001. The requestor mustinclude his or her return address andshould also include a daytime telephonenumber. Written requests should besubmitted at least 120 days before thetime the requestor needs a response.

* * * * *10. In §190.201, paragraph (a) is

revised to read as follows:

§ 190.201 Purpose and scope.

(a) This subpart describes the

enforcement authority and sanctionsexercised by the AssociateAdministrator for achieving andmaintaining pipeline safety andcompliance under 49 U.S.C. 60101 etseq., section 4202 of the Oil PollutionAct of 1990 (33 U.S.C. 1321(j)), and anyPHMSA regulation or order issuedthereunder. It also prescribes theprocedures governing the exercise ofthat authority and the imposition ofthose sanctions.

* * * * *11. In §190.203, paragraph (b)(6) and

paragraphs (c), (e), and (f) are revised to

read as follows:

§ 190.203 Inspections and investigations.

* * * * *(b) * * *(6) Whenever deemed appropriate by

the Associate Administrator, or his orher designee.

(c) If the Associate Administrator believes that further information isneeded to determine appropriate action,the Associate Administrator may notifythe pipeline operator in writing that theoperator is required to provide specific

information within a period specified bythe Associate Administrator, but nolater than 30 days from the time thenotification is received by the operator.The notification must provide areasonable description of the specificinformation required.

* * * * *(e) If a representative of the U.S.

Department of Transportation inspectsor investigates an incident involving apipeline facility, the operator mustmake available to the representative allrecords and information that pertain tothe incident in any way, includingintegrity management plans and testresults. The operator must provide allreasonable assistance in theinvestigation. Any person who obstructsan inspection or investigation by takingactions that were known or reasonablyshould have been known to prevent,hinder, or impede an investigationwithout good cause will be subject to

administrative civil penalties under thissubpart.

(f) When OPS determines that theinformation obtained from an inspectionor from other appropriate sourceswarrants further action, OPS mayinitiate one or more of the enforcementproceedings prescribed in this subpart.

12. Section 190.205 is revised to readas follows:

§ 190.205 Warning letters.

Upon determining that a probableviolation of 49 U.S.C. 60101 et seq.,section 4202 of the Oil Pollution Act of1990 (33 U.S.C. 1321(j)), or any

regulation or order issued thereunderhas occurred, the AssociateAdministrator or his or her designee(s)may issue a Warning Letter notifying theowner or operator of the probableviolation and advising the owner oroperator to correct it or be subject topotential enforcement action under thissubpart. The owner or operator maysubmit a response to the Warning Letter

but is not required to.13. Add §190.206 to subpart B to read

as follows:

§ 190.206 Amendment of plans orprocedures.

(a) A Regional Director begins aproceeding to determine whether anoperator’s plans or procedures requiredunder parts 192, 193, 194, 195, and 199of this subchapter are inadequate toassure safe operation of a pipelinefacility by issuing a notice ofamendment. The notice will specify thealleged inadequacies and the proposedaction for revision of the plans orprocedures and provide an opportunityfor a hearing under §190.211 of thisPart. The notice will allow the operator

30 days after receipt of the notice tosubmit written comments, revisedprocedures, or request a hearing. Afterconsidering all material presented inwriting or at the hearing if applicable,the Associate Administrator determineswhether the plans or procedures areinadequate as alleged and orders therequired amendment if they are

inadequate, or withdraws the notice ifthey are not. In determining theadequacy of an operator’s plans orprocedures, the Associate Administratormay consider:

(1) Relevant available pipeline safetydata;

(2) Whether the plans or proceduresare appropriate for the particular type ofpipeline transportation or facility, andfor the location of the facility;

(3) The reasonableness of the plans orprocedures; and

(4) The extent to which the plans orprocedures contribute to public safety.

(b) The amendment of an operator’splans or procedures prescribed inparagraph (a) of this section is inaddition to, and may be used inconjunction with, the appropriateenforcement actions prescribed in thissubpart.

14. In §190.207, paragraphs (a) and(c) are revised to read as follows:

§ 190.207 Notice of probable violation.

(a) Except as otherwise provided bythis subpart, a Regional Director beginsan enforcement proceeding by serving anotice of probable violation on a personand charging that person with a

probable violation of 49 U.S.C. 60101 etseq., section 4202 of the Oil PollutionAct of 1990 (33 U.S.C. 1321(j)), or anyregulation or order issued thereunder.

* * * * *(c) The Regional Director may amend

a notice of probable violation at anytime prior to issuance of a final orderunder §190.213. If an amendmentincludes any new material allegations offact, proposes an increased civil penaltyamount, or proposes new or additionalremedial action under § 190.217, therespondent will have the opportunity torespond under §190.209.

15. In §190.209, paragraphs (a) and(c) are revised to read as follows:

§ 190.209 Response options.

(a) When the notice contains aproposed civil penalty—

(1) If respondent is not contesting anallegation of probable violation, pay theproposed civil penalty as provided in§ 190.227 and advise the RegionalDirector of the payment. The paymentauthorizes PHMSA to make a finding ofviolation as to the uncontested item(s),with prejudice to the respondent;


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(2) If respondent is not contesting anallegation of probable violation butwishes to submit a written explanation,information or other materialsrespondent believes may warrantmitigation or elimination of theproposed civil penalty, respondent maysubmit such materials. This authorizesPHMSA to make a finding of violation

and to issue a final order under§ 190.213;

(3) If respondent is contesting one ormore allegations of probable violation

but is not requesting a hearing under§ 190.211, respondent may submit awritten response in answer to theallegations; or

(4) The respondent may request ahearing under § 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, constitutesa waiver of the right to contest theallegations in the notice of probableviolation and authorizes the AssociateAdministrator, without further notice tothe respondent, to find the facts asalleged in the notice of probableviolation and to issue a final orderunder § 190.213.

* * * * *16. Add §190.210 to subpart B to read

as follows:

§ 190.210 Separation of functions.

(a) General An agency employee who

assists in the investigation orprosecution of an enforcement case maynot participate in the decision of thatcase or a factually related one, but mayparticipate as a witness or counsel at ahearing, as set forth in this subpart.Likewise, an agency employee whoprepares a decision in an enforcementcase may not have served in aninvestigative or prosecutorial capacityin that case or a factually related one.

(b) Prohibition on ex partecommunications. A party to anenforcement proceeding, including arespondent, its representative, or anagency employee having served in aninvestigative or prosecutorial capacityin the proceeding, may notcommunicate privately with theAssociate Administrator or presidingofficial concerning information that ismaterial to the question to be decided inthe proceeding. A party maycommunicate, however, with thepresiding official regarding certainadministrative or procedural issues,such as for scheduling a hearing.


§ 190.211 Hearings.

(a) General. This section applies tohearings conducted under this partrelating to civil penalty assessments,compliance orders, safety orders, andcorrective action orders. A presidingofficial will convene all hearingsconducted under this section.

(b) Hearing request and statement of

issues. A request for a hearing providedfor in this part must be accompanied bya statement of the issues that therespondent intends to raise at thehearing. The issues may relate to theallegations in the notice, the proposedcorrective action, or the proposed civilpenalty amount. A respondent’s failureto specify an issue may result in waiverof the respondent’s right to raise thatissue at the hearing. The respondent’srequest must also indicate whether ornot the respondent will be represented

by counsel at the hearing. A respondentmay withdraw a hearing request in

writing and, if permitted by thepresiding official, supplement therecord with a written submission in lieuof a hearing.

(c) Telephonic and in-personhearings. A telephone hearing will beheld if the amount of the proposed civilpenalty or the cost of the proposedcorrective action is less than $25,000,unless the respondent or OPS submits awritten request for an in-person hearing.In-person hearings will normally beheld at the office of the appropriatePHMSA Region. Hearings may be held

by video teleconference if the necessaryequipment is available to all parties.

(d) Request for evidentiary material.Upon request, to the extent practicable,OPS will provide to the respondent inadvance of the hearing all evidentiarymaterial upon which OPS intends torely or to introduce at the hearing thatis pertinent to the issues to bedetermined. The respondent mayrespond to or rebut this material at thehearing as set forth in this section.

(e) Pre-hearing submission.Respondent must submit all records,documentation, and other writtenevidence it intends to use to rebut anallegation of violation at least 10

calendar days prior to the date of thehearing, unless another deadline isordered by the presiding official. Failureto submit the material in advance of thehearing in accordance with thisparagraph will waive the respondent’sright to introduce the material at thehearing, unless the presiding officialfinds there is good cause for not timelysubmitting the materials.

(f) Conduct of the hearing. Thehearing is conducted informally withoutstrict adherence to rules of evidence.The presiding official regulates the

course of the hearing and gives eachparty an opportunity to offer facts,statements, explanation, documents,testimony or other items that arerelevant and material to the issuesunder consideration. The parties maycall witnesses on their own behalf andexamine the evidence and witnessespresented by the other party. After the

evidence in the case has been presented,the presiding official may permitdiscussion on the issues underconsideration.

(g) Transcript. PHMSA does notprepare a detailed record of the hearing.The respondent may arrange for thehearing to be recorded or transcribed atcost to the respondent, provided therespondent submits an accurate copy ofthe recording or transcript for theofficial record.

(h) Post-hearing submission. Therespondent and OPS may request anopportunity to submit further written

material after the hearing for inclusionin the record. The presiding official willallow a reasonable time for thesubmission of the material and willspecify the submission date. If thematerial is not submitted within thetime prescribed, the case will proceed tofinal action without the material.

(i) Preparation of decision. Aftersubmission of all materials during andafter the hearing, the presiding officialprepares a recommended decision in thecase. This recommended decision, alongwith any material submitted during andafter the hearing, will be included in the

record which is forwarded to theAssociate Administrator for issuance ofa decision and order.

18. Add §190.212 to subpart B to readas follows:

§ 190.212 Presiding official, powers, andduties.

(a) General. The presiding official fora hearing conducted under § 190.211 isan attorney on the staff of the DeputyChief Counsel who is not engaged inany investigative or prosecutorialfunctions, such as the issuance of anotice under this subpart. If thedesignated presiding official isunavailable, the Deputy Chief Counselmay delegate the powers and dutiesspecified in this section to anotherattorney in the Office of Chief Counselwith no prior involvement in the matterto be heard who will serve as thepresiding official.

(b) Time and place of the hearing. Thepresiding official will set the date, timeand location of the hearing. To theextent practicable, the presiding officialwill accommodate the parties’ scheduleswhen setting the hearing. Reasonable


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notice of the hearing will be provided toall parties.

(c) Powers and duties of presidingofficial. The presiding official willconduct a fair and impartial hearing andtake all action necessary to avoid delayin the disposition of the proceeding andmaintain order. The presiding officialhas all powers necessary to achieve

those ends, including, but not limited tothe power to:

(1) Regulate the course of the hearingand conduct of the parties and theircounsel;

(2) Receive evidence and inquire intothe relevant and material factsconcerning the matters that are subjectof the hearing;

(3) Require the submission ofdocuments and other information;

(4) Direct that documents or briefsrelate to issues raised during the courseof 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 isnecessary to carry out theresponsibilities of the presiding officialunder this subpart.

19. Section 190.213 is amended byrevising paragraph (b)(5), addingparagraph (b)(6) and removingparagraphs (d) and (e) to read as follows:

§ 190.213 Final order.

* * * * *(b) * * *(5) In cases involving a § 190.211

hearing, any material submitted duringand after the hearing; and

(6) The recommended decisionprepared by the presiding official incases involving a §190.211 hearing, orprepared by an attorney from the Officeof Chief Counsel in cases not involvinga hearing, containing proposed findingsand determinations on all materialissues.

(c) * * *

§ 190.215 [Removed and Reserved]

20. Remove and reserve §190.215.21. Section 190.217 is revised to read

as follows:§ 190.217 Compliance orders generally.

When the Associate Administratorhas reason to believe that a person isengaging in conduct that violates 49U.S.C. 60101 et seq., section 4202 of theOil Pollution Act of 1990 (33 U.S.C.1321(j)), or any regulation or orderissued thereunder, and if the nature ofthe violation and the public interestwarrant, the Associate Administratormay conduct proceedings under§§ 190.207 through 190.213 of this part

to determine the nature and extent ofthe violations and to issue an orderdirecting compliance.

22. In §190.219, paragraph (a) isrevised and paragraph (c) is added toread as follows:

§ 190.219 Consent order.

(a) At any time prior to the issuance

of a compliance order under § 190.217,a corrective action order under§ 190.233, or a safety order under§ 190.239, the Associate Administratorand the respondent may agree todispose of the case by execution of aconsent agreement and order which may

be jointly executed. Upon execution, theconsent order is considered a final orderunder § 190.213.

* * * * *(c) The proposed execution of a

consent agreement and order arising outof a corrective action order under§ 190.233 will comply with the

notification procedures set forth in 49U.S.C. 60112(c).23. Section 190.221 is revised to read

as follows:

§ 190.221 Civil penalties generally.

When the Associate Administratorhas reason to believe that a person hascommitted an act violating 49 U.S.C.60101 et seq., section 4202 of the OilPollution Act of 1990 (33 U.S.C.1321(j)), or any regulation or orderissued thereunder, proceedings under§§ 190.207 through 190.213 may beconducted to determine the nature andextent of the violations and to assess

and, if appropriate, compromise a civilpenalty.


§ 190.223 Maximum penalties.

(a) Any person who is determined tohave violated a provision of 49 U.S.C.60101 et seq. section 4202 of the OilPollution Act of 1990 (33 U.S.C.1321(j)), or any regulation or orderissued thereunder after January 3, 2012,is subject to an administrative civilpenalty not to exceed $200,000 for eachviolation for each day the violation

continues, except that the maximumadministrative civil penalty may notexceed $2,000,000 for any related seriesof violations.

(b) Any person who is determined tohave violated any standard or orderunder 49 U.S.C. 60129 shall be subjectto a civil penalty not to exceed $1,000,which shall be in addition to any otherpenalties to which such person may besubject under paragraph (a) of thissection.

(c) No person will be subject to a civilpenalty under this section for the

violation of any provision of 49 U.S.C.60101 et seq. or any regulation issuedthereunder resulting in an order beingissued under §§190.217, 190.219 or190.233 and a violation of therequirements of such an order if bothviolations are based on the same act,except that failure to comply with theterms of such orders constitutes a

different act.25. In §190.225, paragraphs (a)(1),

(a)(2), (a)(3), (a)(4) and (a)(5) are revisedto read as follows:

§ 190.225 Assessment considerations.

* * * * *(a) The Associate Administrator shall

consider:(1) The nature, circumstances and

gravity of the violation, includingadverse impact on the environment;

(2) The degree of the respondent’sculpability;

(3) The respondent’s history of prior

offenses;(4) Any good faith by the respondentin attempting to achieve compliance;

(5) The effect on the respondent’sability to continue in business; and

* * * * *26. In §190.227, paragraph (a) is


§ 190.227 Payment of penalty.

(a) Except for payments exceeding$10,000, payment of a civil penaltyproposed or assessed under this subpartmay be made by certified check ormoney order (containing the CPFNumber for the case), payable to ‘‘U.S.

Department of Transportation,’’ to theFederal Aviation Administration, MikeMonroney Aeronautical Center,Financial Operations Division (AMZ–341), P.O. Box 25770, Oklahoma City,OK 73125, by wire transfer through theFederal Reserve CommunicationsSystem (Fedwire) to the account of theU.S. Treasury, or via ‘‘www.pay.gov.’’ Payments exceeding $10,000 must bemade by wire transfer.

* * * * *


27. Remove and reserve §190.229.


28. Remove and reserve §190.231.29. In §190.233, paragraphs (a), (b),

(c)(3), (c)(4), (f)(1), and (g) are revised toread as follows:

§ 190.233 Corrective action orders.

(a) Except as provided by paragraph(b) of this section, if the AssociateAdministrator finds, after reasonablenotice and opportunity for hearing inaccord with paragraph (c) of this sectionand §190.211, a particular pipeline


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facility is or would be hazardous to life,property, or the environment, theAssociate Administrator may issue anorder pursuant to this section requiringthe owner or operator of the facility totake corrective action. Corrective actionmay include suspended or restricted useof the facility, physical inspection,testing, repair, replacement, or other

appropriate action.(b) The Associate Administrator may

waive the requirement for notice andopportunity for hearing under paragraph(a) of this section before issuing an orderwhenever the Associate Administratordetermines that the failure to do sowould result in the likelihood of seriousharm to life, property, or theenvironment. When an order is issuedunder this paragraph, a respondent thatelects to contest the order may obtainexpedited review of the order either byanswering in writing to the order orrequesting a §190.211 hearing to be

held as soon as practicable inaccordance with paragraph (c)(2) of thissection. For purposes of this section, theterm ‘‘expedited review’’ is defined asthe process for making a promptdetermination of whether the ordershould remain in effect or beterminated, in accordance withparagraph (g) of this section. Theexpedited review of an order issuedunder this paragraph will be completeupon issuance of such determination.

(c) * * *

(3) A hearing under this section will be conducted pursuant to § 190.211.

(4) After conclusion of a hearingunder this section, the presiding officialwill submit a recommendation to theAssociate Administrator as to whetheror not a hazardous condition that existsor may exist requiring corrective actionexpeditiously. Upon receipt of therecommendation, the AssociateAdministrator will proceed inaccordance with paragraphs (d) through(h) of this section. If the AssociateAdministrator finds the facility is orwould be hazardous to life, property, orthe environment, the Associate

Administrator, OPS issues a correctiveaction order in accordance with thissection or continues a corrective actionorder already issued under paragraph(b) of this section. If the AssociateAdministrator does not find the facilityis or would be hazardous to life,property, or the environment, theAssociate Administrator will withdrawthe allegation of the existence of ahazardous facility contained in thenotice or will terminate a correctiveaction order issued under paragraph (b),and promptly notify the owner or

operator in writing by service asprescribed in § 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 willterminate a corrective action orderwhenever the Associate Administratordetermines that the facility is no longerhazardous to life, property, or theenvironment. If appropriate, however, anotice of probable violation may beissued under §190.207.

* * * * *


30. Remove and reserve §190.237.31. Section 190.239 is amended by

revising the heading of paragraphs (a),(b), (c), (d), (e), and (f), and addingparagraph (g) to read as follows:

§ 190.239 Safety orders.

(a) When may PHMSA issue a safetyorder? * * *

(b) How is an operator notified of the proposed issuance of a safety order andwhat are its responses options? * * *

(c) How is the determination madethat a pipeline facility has a conditionthat poses an integrity risk? * * *

(d) What factors must PHMSAconsider in making a determination thata risk condition is present? * * *

(e) What information will be includedin a safety order? * * *

(f) Can PHMSA take otherenforcement actions on the affected facilities? * * *

(g) May I petition for reconsiderationof a safety order? Yes, a petition forreconsideration may be submitted inaccordance with § 190.249.

§ 190.241 [Reserved]

32. Add and reserve § 190.241.






35. Add and reserve § 190.247.36. Add §190.249 to subpart B to read

as follows:

§ 190.249 Petitions for reconsideration.

(a) A respondent may petition theAssociate Administrator forreconsideration of a final order issuedunder §190.213, a compliance orderissued under §190.217, a correctiveaction order issued under § 190.233, anorder directing amendment of plans or

procedures under §190.206, or a safetyorder under §190.239. The petitionmust be received no later than 30 daysafter service of the order upon therespondent and a copy must beprovided to the Office of Chief Counsel.Petitions received after that time willnot be considered. The petition mustcontain a brief statement of the

complaint and an explanation as to whythe order should be reconsidered.

(b) If the respondent requests theconsideration of additional facts orarguments, the respondent must submitthe reasons they were not presentedprior to issuance of the final order.

(c) The Associate Administrator doesnot consider repetitious information,arguments, or petitions.

(d) The filing of a petition under thissection stays the payment of any civilpenalty assessed. However, unless theAssociate Administrator, OPS otherwiseprovides, the order, including any

required corrective action, is not stayed.(e) The Associate Administrator may

grant or deny, in whole or in part, anypetition for reconsideration withoutfurther proceedings. In the event theAssociate Administrator reconsider afinal order, a final decision onreconsideration may be issued withoutfurther proceedings, or, in thealternative, additional information, data,and comment may be requested by theAssociate Administrator as deemedappropriate.

(f) It is the policy of the AssociateAdministrator to issue notice of the

action taken on a petition forreconsideration expeditiously. In caseswhere a substantial delay is expected,notice of that fact and the date by whichit is expected that action will be takenis provided to the respondent uponrequest and whenever practicable.

(g) The Associate Administrator’sdecision on reconsideration is the finalagency action. Any application forjudicial review must be filed no laterthan 89 days after the issuance of thedecision in accordance with 49 U.S.C.60119(a). Failure to raise an issue in apetition for reconsideration waives the

availability of judicial review of thatissue.(h) Judicial review of agency action

under 49 U.S.C. 60119(a) will apply thestandards of review established insection 706 of title 5.

Subpart C—[Redesignated asSubpart D]

37. Redesignate existing subpart C asnew subpart D.

38. Add new subpart C to read asfollows:


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Subpart C—Criminal Enforcement

§ 190.291 Criminal penalties generally.

(a) Any person who willfully andknowingly violates a provision of 49U.S.C. 60101 et seq. or any regulation ororder issued thereunder will uponconviction be subject to a fine undertitle 18 and imprisonment for not morethan five years, or both, for each offense.

(b) Any person who willfully andknowingly injures or destroys, orattempts to injure or destroy, anyinterstate transmission facility, anyinterstate pipeline facility, or anyintrastate pipeline facility used ininterstate or foreign commerce or in anyactivity affecting interstate or foreigncommerce (as those terms are defined in49 U.S.C. 60101 et seq.) will, uponconviction, be subject to a fine undertitle 18, imprisonment for a term not toexceed 20 years, or both, for eachoffense.

(c) Any person who willfully andknowingly defaces, damages, removes,or destroys any pipeline sign, right-of-way marker, or marine buoy required by49 U.S.C. 60101 et seq. or any regulationor order issued thereunder will, uponconviction, be subject to a fine undertitle 18, imprisonment for a term not toexceed 1 year, or both, for each offense.

(d) Any person who willfully andknowingly engages in excavationactivity without first using an availableone-call notification system to establishthe location of underground facilities in

the excavation area; or withoutconsidering location information ormarkings established by a pipelinefacility operator; and

(1) Subsequently damages a pipelinefacility resulting in death, serious bodilyharm, or property damage exceeding$50,000;

(2) Subsequently damages a pipelinefacility and knows or has reason toknow of the damage but fails topromptly report the damage to theoperator and to the appropriateauthorities; or

(3) Subsequently damages a

hazardous liquid pipeline facility thatresults in the release of more than 50

barrels of product; will, uponconviction, be subject to a fine undertitle 18, imprisonment for a term not toexceed 5 years, or both, for each offense.

(e) No person shall be subject tocriminal penalties under paragraph (a)of this section for violation of anyregulation and the violation of any orderissued under §§190.217, 190.219 or190.291 if both violations are based onthe same act.

§ 190.293 Referral for prosecution.

If an employee of the Pipeline andHazardous Materials SafetyAdministration becomes aware of anyactual or possible activity subject tocriminal penalties under § 190.291, theemployee reports it to the Office of theChief Counsel, Pipeline and HazardousMaterials Safety Administration, U.S.Department of Transportation,Washington, DC 20590. The ChiefCounsel refers the report to OPS forinvestigation. Upon completion of theinvestigation and if appropriate, theChief Counsel refers the report to theDepartment of Justice for criminalprosecution of the offender.


§ 190.319 Petitions for extension of time tocomment.

A petition for extension of the time tosubmit comments must be submitted to

PHMSA in accordance with § 190.309and received by PHMSA not later than10 days before expiration of the timestated in the notice. The filing of thepetition does not automatically extendthe time for petitioner’s comments. Apetition is granted only if the petitionershows good cause for the extension, andif the extension is consistent with thepublic interest. If an extension isgranted, it is granted to all persons, andit is published in the Federal Register.


§ 190.321 Contents of written comments.

All written comments must be inEnglish. Any interested person shouldsubmit as part of written comments allmaterial considered relevant to anystatement of fact. Incorporation ofmaterial by reference should be avoided;however, where necessary, suchincorporated material shall be identified

by document title and page.41. In §190.327, paragraph (b) is


§ 190.327 Hearings.

* * * * *(b) Sections 556 and 557 of title 5,

United States Code, do not apply tohearings held under this subpart. Unlessotherwise specified, hearings heldunder this part are informal, non-adversarial fact-finding proceedings, atwhich there are no formal pleadings oradverse parties. Any regulation issuedin a case in which an informal hearingis held is not necessarily basedexclusively on the record of the hearing.

* * * * *42. In §190.335, paragraph (a) is


§ 190.335 Petitions for Reconsideration.

(a) Except as provided in § 190.339(d),any interested person may petition theAssociate Administrator forreconsideration of any regulation issuedunder this subpart, or may petition theChief Counsel for reconsideration of anyprocedural regulation issued under thissubpart and contained in this subpart.The petition must be received not laterthan 30 days after publication of therule in the Federal Register. Petitionsfiled after that time will be consideredas petitions filed under § 190.331. Thepetition must contain a brief statementof the complaint and an explanation asto why compliance with the rule is notpracticable, is unreasonable, or is not inthe public interest.

* * * * *43. Section 190.337 is revised to read

as follows:

§ 190.337 Proceedings on petitions for

reconsideration.The Associate Administrator or the

Chief Counsel may grant or deny, inwhole or in part, any petition forreconsideration without furtherproceedings, except where a grant of thepetition would result in issuance of anew final rule. In the event that theAssociate Administrator or the ChiefCounsel determines to reconsider anyregulation, a final decision onreconsideration may be issued withoutfurther proceedings, or an opportunityto submit comment or information anddata as deemed appropriate, may be

provided. Whenever the AssociateAdministrator or the Chief Counseldetermines that a petition should begranted or denied, the Office of theChief Counsel prepares a notice of thegrant or denial of a petition forreconsideration, for issuance to thepetitioner, and the AssociateAdministrator or the Chief Counselissues it to the petitioner. The AssociateAdministrator or the Chief Counsel mayconsolidate petitions relating to thesame rules.

§190.338 [Amended]

44. In §190.338, paragraph (c) isremoved and reserved.

45. Section 190.341 is amended byrevising the heading of paragraphs (a),(b), (c), (d), (e), (f), (g), (h), (i), and (j),and adding paragraph (k) to read asfollows:

§ 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? * * *


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(d) How does PHMSA handle special permit applications? * * *

(e) Can a special permit be requestedon an emergency basis? * * *

(f) How do I apply for an emergencyspecial permit? * * *

(g) What must be contained in anapplication for an emergency special

permit? * * *

(h) In what circumstances willPHMSA revoke, suspend, or modify aspecial permit? * * *

(i) Can a denial of a request for aspecial permit or a revocation of anexisting special permit be appealed?* * *

(j) Are documents related to anapplication for a special permitavailable for public inspection? * * *

(k) Am I subject to enforcement action for non-compliance with the terms andconditions of a special permit? Yes.PHMSA inspects for compliance withthe terms and conditions of special

permits and if a violation is identified,PHMSA will initiate one or more of theenforcement actions under subpart B ofthis part.

PART 192—TRANSPORTATION OFNATURAL AND OTHER GAS BYPIPELINE: MINIMUM FEDERALSAFETY STANDARDS

46. The authority citation for Part 192continues 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 §192.603, paragraph (c) is

revised read as follows:§ 192.603 General provisions.

* * * * *(c) The Administrator or the State

Agency that has submitted a currentcertification under the pipeline safetylaws, (49 U.S.C. 60101 et seq.) with

respect to the pipeline facility governed by an operator’s plans and proceduresmay, after notice and opportunity forhearing as provided in 49 CFR 190.206or the relevant State procedures, requirethe operator to amend its plans andprocedures as necessary to provide areasonable level of safety.

PART 193—LIQUEFIED NATURAL GASFACILITIES: FEDERAL SAFETYSTANDARDS

48. The authority citation for Part 193continues to read as follows: 49 U.S.C.5103, 60102, 60103, 60104, 60108,60109, 60110, 60113, 60118; and 49 CFR1.53.

49. In §193.2017, paragraph (b) isrevised read as follows:

§ 192.2017 Plans and procedures.

* * * * *

(b) The Administrator or the State

Agency that has submitted a currentcertification under section 5(a) of theNatural Gas Pipeline Safety Act withrespect to the pipeline facility governed

by an operator’s plans and proceduresmay, after notice and opportunity forhearing as provided in 49 CFR 190.206or the relevant State procedures, requirethe operator to amend its plans andprocedures as necessary to provide areasonable level of safety.

* * * * *

PART 195—TRANSPORTATION OFHAZARDOUS LIQUIDS BY PIPELINE

50. The authority citation for Part 195continues to read as follows: 49 U.S.C.5103, 60102, 60104, 60108, 60109,60116, 60118, and 60137; and 49 CFR1.53.


§ 195.402 Procedural manual foroperations, maintenance, and emergencies.

* * * * *(b) The Administrator or the State

Agency that has submitted a currentcertification under the pipeline safetylaws (49 U.S.C. 60101 et seq.) withrespect to the pipeline facility governed

by an operator’s plans and procedures

may, after notice and opportunity forhearing as provided in 49 CFR 190.206or the relevant State procedures, requirethe operator to amend its plans andprocedures as necessary to provide areasonable level of safety.

* * * * *

PART 199—TRANSPORTATION OFHAZARDOUS LIQUIDS BY PIPELINE

52. The authority citation for Part 199continues to read as follows: 49 U.S.C.5103, 60102, 60104, 60108, 60117, and60118; 49 CFR 1.53.


§ 199.101 Anti-drug plan.

* * * * *(b) The Administrator or the State

Agency that has submitted a currentcertification under the pipeline safetylaws (49 U.S.C. 60101 et seq.) withrespect to the pipeline facility governed

by an operator’s plans and proceduresmay, after notice and opportunity forhearing as provided in 49 CFR 190.206or the relevant State procedures, requirethe operator to amend its plans andprocedures 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

V D M 15 2010 16 03 A 10 2012 Jk 226001 PO 00000 F 00016 F 4702 Sf 9990 E \FR\FM\13AUP1 SGM 13AUP1

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