# Pipeline Safety: Administrative Procedures; Updates and Technical Corrections

- **operation:** document
- **citation:** 77 FR 48112
- **title:** Pipeline Safety: Administrative Procedures; Updates and Technical Corrections
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2012-08-13
- **effective on:** Not available
- **summary:** This Notice of Proposed Rulemaking updates the administrative civil penalty maximums for violation of the pipeline safety regulations to conform to current law, updates the informal hearing and adjudication process for pipeline enforcement matters to conform to current law, amends other administrative procedures used by PHMSA personnel, and makes other technical corrections and updates to certain administrative procedures. The proposed amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators.
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Federal Register, Volume 77 Issue 156 (Monday, August 13, 2012) [Federal Register Volume 77, Number 156 (Monday, August 13, 2012)] [Proposed Rules] [Pages 48112-48122] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2012-19571] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 190, 192, 193, 195, and 199 [Docket No. PHMSA-2012-0102] RIN 2137-AE29 Pipeline Safety: Administrative Procedures; Updates and Technical Corrections AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: This Notice of Proposed Rulemaking updates the administrative civil penalty maximums for violation of the pipeline safety regulations to conform to current law, updates the informal hearing and adjudication process for pipeline enforcement matters to conform to current law, amends other administrative procedures used by PHMSA personnel, and makes other technical corrections and updates to certain administrative procedures. The proposed amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators. DATES: Persons interested in submitting written comments on the rule amendments proposed in this document must do so by September 12, 2012. PHMSA will consider comments filed after this date so far as practicable. ADDRESSES: Comments should reference Docket No. PHMSA-2012-0102 and may be submitted in the following ways: Web Site: http://www.regulations.gov . This site allows the public to enter comments on any Federal Register notice issued by any agency. Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: U.S. Department of Transportation (DOT) Docket Operations Facility (M-30), West Building, 1200 New Jersey Avenue SE., Washington, DC 20590. Hand Delivery: DOT Docket Operations Facility, West Building, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, 20590 between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays Instructions: Identify the docket number, PHMSA-2012-0102, at the beginning of your comments. If you mail your comments, submit two copies. In order to confirm receipt of your comments, include a self- addressed, stamped postcard. Note: All comments are posted electronically in their original form, without changes or edits, including any personal information. Privacy Act Statement Anyone can search the electronic comments associated with any docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). DOT's complete Privacy Act Statement was published in the Federal Register on April 11, 2000, (65 FR 19477). FOR FURTHER INFORMATION CONTACT: James Pates, PHMSA, Office of Chief Counsel, 202-366-0331, [email protected] ; Kristin T.L. Baldwin, Office of Chief Counsel, 202-366-6139, [email protected] ; or Larry White, PHMSA, Office of Chief Counsel, 202-366-9093, [email protected] . SUPPLEMENTARY INFORMATION: I. Purpose and Scope Effective January 3, 2012, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-90) (the Act) increased the maximum administrative civil penalties for violation of the pipeline safety laws and regulations to $200,000 per violation per day of violation, with a maximum of $2,000,000 for a related series of violations. The Act also imposed certain requirements for the conduct of informal administrative enforcement hearings including, among other things: convening hearings before a presiding official, an attorney on the staff of the Deputy Chief Counsel; providing an opportunity for a respondent to arrange for a hearing transcript; ensuring a separation of functions between agency employees involved with the investigation or prosecution of an enforcement case and those involved in deciding the case; and prohibiting ex parte communications. The Act also provided PHMSA with new enforcement authority for oil spill response plan compliance under section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)). In accordance with the Act, PHMSA proposes to: update the administrative civil penalty maximums and the informal hearing process for pipeline enforcement matters to conform to current law and to amend other administrative procedures used by PHMSA personnel; amend the criminal enforcement provisions to conform to current law and practice; make corrections to the special permit provisions in the procedures for adoption of rules; implement the new enforcement authority for Part 194 oil spill response plans; and make certain technical amendments and corrections. The proposed amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators. II. Proposed Amendments to Part 190 A. Administrative Civil Penalties and the Informal Hearing and Enforcement Process Maximum administrative civil penalties. Section 2 of the Pipeline Safety Act of 2011 increased the maximum administrative civil penalties for violation of the pipeline safety laws and regulations to $200,000 per violation per day, with a maximum of $2,000,000 for a related series of violations. PHMSA proposes to amend 49 CFR 190.223 to reflect this increase. PHMSA proposes to apply the new administrative civil penalty maximums in cases involving violations that occur or are discovered after January 3, 2012. The proposed amendment also removes [[Page 48113]] outdated penalty provisions for violations involving offshore gathering lines and liquefied natural gas facilities and clarifies the applicability of penalties for violations of the terms of an enforcement order. Presiding Official. Section 20(a)(1)(A) of the Act requires PHMSA to issue regulations requiring hearings conducted under 49 U.S.C. chapter 601 for the issuance of corrective action orders (CAOs), safety orders, compliance orders, and civil penalties to be convened before a presiding official. The pipeline enforcement process found in 49 CFR part 190, used successfully by PHMSA for many years, already includes the use of such a presiding official for informal hearings. The amendment proposes to codify existing practice. This process provides pipeline operators with the right to receive notice of any alleged violations identified during an inspection or investigation; to respond to the notice, including the opportunity to request an informal hearing or otherwise contest any alleged violations; to examine the evidence; to be represented by counsel; to provide any relevant information to the proposed penalty amount; and to petition for reconsideration of the agency's decision. Although current regulations already provide that hearings are held before a presiding official, section 20(a)(2) of the Act requires that PHMSA issue regulations both defining the term ``presiding official'' and requiring the presiding official to be an attorney on the staff of the Deputy Chief Counsel who is not engaged in investigative or prosecutorial functions. PHMSA proposes to conform to this requirement by amending the existing definition of ``presiding official'' in Sec. 190.3 and by adding a new Sec. 190.212 concerning the presiding official's powers and duties. The proposed regulations will specify the powers and duties of the presiding official and provide that, if the dedicated presiding official is unavailable, the Deputy Chief Counsel may delegate the duties of the presiding official to another attorney in the Office of Chief Counsel who has no prior involvement in the case and who will be supervised by the Deputy Chief Counsel. PHMSA also proposes to amend Sec. 190.211(a) to clarify that this section applies to any hearing relating to civil penalty assessments, compliance orders, safety orders, or CAOs. Hearing transcript. Section 20(a)(1)(B) of the Act requires PHMSA to issue regulations providing the opportunity for any party requesting a hearing to arrange for a transcript of the hearing, at the party's expense. Although it is currently PHMSA's practice to permit a respondent to make arrangements for a transcript at the respondent's cost, this is not explicitly stated in Part 190. PHMSA proposes to amend Sec. 190.211 to provide that a respondent may arrange for a hearing to be recorded or transcribed at its own cost. PHMSA further proposes that an accurate copy of the recording or transcript must be submitted for the official record. Separation of functions and prohibition on ex parte communications. Section 20(a)(1)(D) of the Act requires PHMSA to issue regulations implementing a separation of functions between agency employees involved with the investigation and prosecution of an enforcement case and those involved in deciding the case. PHMSA's current practice is to ensure that personnel involved in deciding an enforcement case are not involved in determining the allegations to be made in that case or preparing the Notice of Probable Violation or other type of enforcement action. On July 12, 2011, PHMSA explained its separation of functions policy in a statement published in the Federal Register (76 FR 40820). In order to conform Part 190 to the current law and existing agency practice, PHMSA proposes to add a new Sec. 190.210, titled: ``Separation of functions.'' Paragraph (a) of the new section proposes that an agency employee involved in the investigation or prosecution of an enforcement case may not participate in the decision of that case or a factually related case, but may participate as a witness or counsel at a hearing, as set forth in subpart B. Likewise, paragraph (a) proposes to require that an agency employee who prepares the decision in an enforcement case may not have served in an investigative or prosecutorial capacity in that case or a factually related case. Section 20(a)(1)(E) of the Act requires PHMSA to issue regulations prohibiting ex parte communications that are relevant to the question to be decided in an enforcement case. An ex parte communication is a communication between a party to a pending case and the decision maker regarding an issue in that case occurring outside the presence of the other parties and without prior notice and opportunity for all parties to provide comment or rebuttal. In the aforementioned July 12, 2011, PHMSA policy statement discussed earlier in this preamble, the agency explained that ex parte communications with the presiding official are not permitted by the operator, its counsel, or agency staff involved in the investigation and prosecution of the case. This prohibition applies to all communication regarding information, facts, or arguments involving an issue in the case, but not to routine administrative matters, such as scheduling the hearing or clarification of the enforcement process. To incorporate this prohibition into Part 190, PHMSA proposes to add paragraph (b) to the newly created Sec. 190.210 enjoining any party to an enforcement proceeding (e.g., respondent, agency employees serving in an investigative or prosecutorial capacity, representatives of either party, etc.) from communicating privately with the decision maker concerning information that is material to the question to be decided. Notwithstanding this addition, parties would be allowed to communicate freely with the presiding official regarding procedural or administrative issues, such as scheduling a hearing. Expedited review of corrective action orders. Section 20(a)(1)(C) of the Act requires PHMSA to issue regulations ensuring ``expedited review'' of any CAO issued without prior notice pursuant to 49 U.S.C. 60112(e). Section 20(a)(3) also requires the agency to define the term ``expedited review'' for purposes of this regulation. The procedural regulations for issuance of a CAO after notice and opportunity for hearing are outlined in Sec. 190.233. Under paragraph (b) of that regulation, PHMSA may waive the requirement for prior notice and opportunity for hearing if a failure to do so would result in the likelihood of serious harm to life, property, or the environment. In cases where an order is issued without prior notice, paragraph (b) already requires that an opportunity for a hearing be provided to the respondent as soon as is practicable after issuance of the order. PHMSA typically schedules hearings within 10 calendar days, except where the respondent requests postponement for good cause. The current process works well both to ensure that an operator has a timely opportunity for a post-order hearing and that PHMSA acts expeditiously to render a final determination on the CAO. Therefore, PHMSA proposes to conform paragraph Sec. 190.233(b) to current law by defining the term ``expedited review'' for purposes of a CAO issued without prior notice. In this proposed ``expedited review,'' the respondent must either request such review by answering the order in writing or by requesting a hearing. The Associate Administrator, as soon as practicable following issuance of the order, will decide whether the order should remain in effect or be terminated. Once the determination is issued, the expedited review process is [[Page 48114]] complete. Issuance of the decision will occur as soon as is practicable. Other amendments to enforcement process. PHMSA also proposes other technical amendments and updates to improve the clarity and efficiency of the enforcement regulations and to otherwise conform to current practice. These proposed amendments include: 1. Amending Sec. 190.7(a), relating to subpoenas and witness fees, to clarify that PHMSA has the authority to issue subpoenas for any reason to carry out its duties at any time, both during the investigative phase of an enforcement action and pursuant to a hearing. 2. Amending Sec. 190.11(a)(1), relating to the availability of informal guidance on the pipeline safety regulations, to remove the requirement that ``All messages will receive a response by the following business day,'' since the Office of Pipeline Safety (OPS) is not always able to provide telephonic guidance or interpretive assistance on pipeline regulations by the following business day. 3. Amending Sec. 190.11(a) to revise paragraph (a)(1) and remove paragraph (a)(2) to reflect the current practice on obtaining telephonic and internet assistance from OPS. 4. Amending Sec. 190.11(b) to remove paragraph (b)(2) to reflect the current practice on obtaining written interpretations from OPS. 5. Amending Sec. 190.201, relating to the purpose and scope of subpart B, to clarify that these enforcement procedures encompass the enforcement of 49 U.S.C. 60101 et seq., section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)), and any PHMSA regulation or order issued thereunder. 6. Amending Sec. 190.203(c), relating to inspections and investigations, to clarify that an OPS request for specific information to an owner or operator may be issued at any time and is not limited to a request following an inspection. 7. Amending Sec. 190.203(e) to provide that if a representative of DOT investigates an accident or incident involving a pipeline facility, the owner or operator of the facility must provide all records and information pertaining to the accident or incident to a representative of DOT, including integrity management plans and test results. Pursuant to this proposed change, the owner or operator of the facility would be required to provide all reasonable assistance in the investigation of the accident or incident. Civil penalties may be assessed for obstructing an OPS inspection or investigation, in accordance with section 2 of the Act. 8. Amending Sec. Sec. 190.205, 190.207, 190.217, 190.219, 190.221, and 190.223, relating to enforcement actions, to provide that OPS may take varied actions under section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)). 9. Amending Sec. 190.211, relating to hearings, to clarify the manner in which informal hearings are conducted, including: A respondent may withdraw a hearing request in writing and, if permitted by the presiding official, supplement the record with a written submission in lieu of a hearing; a respondent must submit the material it intends to use to rebut the allegation of violation at least 10 calendar days prior to the date of the hearing; the hearing is conducted informally; OPS, as well as the respondent, may present evidence and call witnesses at a hearing; and both parties may request permission to submit additional documents after the hearing. 10. Amending Sec. 190.211(c) to provide that all hearings in civil penalty cases under $25,000 (currently $10,000) will be held by telephone conference, unless either party requests an in-person hearing. This proposed change recognizes the increase in the size of civil penalty assessments generally and minimizes travel expense for both parties. The presiding official will also have the flexibility to order a video conference in addition to a telephonic hearing. 11. Amending Sec. 190.211(d) to clarify that all evidentiary material on which OPS intends to rely at a hearing, to the extent possible, must be provided at respondent's request prior to a hearing in order to ensure the respondent's full access to the evidentiary record upon which final orders are based. 12. Amending Sec. 190.213(b), relating to final orders, to clarify that the presiding official in a Sec. 190.211 hearing case or an attorney from the Office of Chief Counsel in a non-hearing case provides a recommended decision to the Associate Administrator proposing findings on all material issues. 13. Amending Sec. 190.213(d) and (e) to remove the provision that an operator may file a judicial appeal of a final order without first filing a petition for reconsideration. This proposed change will ensure that the parties have an administrative opportunity to correct errors prior to the filing of a judicial appeal. 14. Amending Sec. 190.215, relating to petitions for reconsideration, by moving the language in this section to Sec. 190.249 at the end of subpart B and expanding its scope to cover all final orders, corrective action orders, notices of amendment, and safety orders. This proposed change clarifies that a respondent must file a petition to exhaust its administrative remedies. Additionally, a proposed provision on the filing period and the standard of judicial review has been included in order to conform to 49 U.S.C. 60119. 15. Amending the existing language in Sec. 190.215(a) that is moved to Sec. 190.249 to remove the requirement that a respondent file multiple copies of a petition; to allow 30, rather than 20, calendar days from receipt of service of a final order to file a petition for reconsideration; and to indicate that all petitions must be filed with the Associate Administrator, with a copy to the Office of Chief Counsel. 16. Amending Sec. 190.219, relating to consent orders, to expand this section to provide that consent orders may also be used to resolve CAOs and safety orders. 17. Amend Sec. Sec. 190.223(b) and 190.229(b), relating to civil and criminal penalties, to remove obsolete civil and criminal penalty provisions for violations involving offshore gathering lines. 18. Amending Sec. 190.225(a), relating to civil penalty assessment considerations, to remove paragraph (a)(4) relating to ``ability to pay'' as a penalty assessment factor, to conform to the Act. 19. Amending Sec. 190.233(b) and (c), relating to CAOs, to provide an expedited process for setting hearings and issuing decisions on CAOs and notices of proposed CAOs. This proposal also includes an expedited process for handling petitions for reconsideration to challenge CAOs, to conform to the Act. B. Criminal Enforcement PHMSA proposes to amend the criminal enforcement provisions as follows: 1. Relocating the criminal enforcement sections to a new ``Subpart C--Criminal Enforcement.'' 2. Amending the language in existing Sec. 190.229 that is moved to Sec. 190.291, relating to criminal penalties, to remove outdated maximum criminal penalty amounts for each criminal offense and insert ``fined under Title 18'' to conform to current 49 U.S.C. 60123. C. Procedures for Adoption of Rules PHMSA proposes to amend the procedures for the adoption of rules provisions as follows: 1. Redesignating current Subpart C, Procedures for Adoption of Rules, as Subpart D. 2. Amending Sec. 190.207(a), relating to Notices of Probable Violation (NOPV), to clarify that a NOPV may be issued for [[Page 48115]] violation of a special permit, as a special permit is an agency order that is enforceable through a NOPV. 3. Amending Sec. 190.239 to include a process for filing petitions for reconsideration on safety orders. 4. Amending Sec. 190.337 to remove paragraph (b), relating to the reconsideration of petitions for rulemaking, to remove the target times for the Associate Administrator to act on petitions for reconsideration, to conform to actual practice. 5. Amending Sec. 190.341, relating to special permits, to clarify that PHMSA may issue a NOPV for violations of a special permit. D. Technical Amendments and Corrections PHMSA proposes to make the following technical amendments and corrections to Part 190: 1. Amending Part 190 to remove all references to 49 U.S.C. 5101, to update Web sites addresses, telephone numbers, and postal addresses, and to eliminate other incorrect references. 2. Amending Part 190 to remove the term ``PHMSA'' from the phrases ``Administrator, PHMSA'' and ``Chief Counsel, PHMSA'' throughout Part 190 and remove the term ``OPS'' from the phrase ``Associate Administrator, OPS.'' 3. Amending Sec. 190.3 to define the terms ``Associate Administrator,'' ``Chief Counsel,'' ``Day,'' and ``Operator.'' 4. Amending Sec. 190.7(d) to harmonize the service of subpoenas with the service of other documents under Sec. 190.5 to reflect that service by hand, certified mail, or registered mail is complete upon mailing. 5. Amending Sec. 190.203(b)(6) and other sections to eliminate the exclusive use of the masculine pronouns ``him'' and ``his'' or to define the term to include both masculine and feminine. 6. Amending Sec. 190.205 to clarify that the Associate Administrator or his or her designee(s) issue warning letters and that an operator may respond to a warning letter. 7. Amending Sec. 190.207(a) to clarify that a NOPV may contain a combination of warning items, allegations of violation, proposed civil penalties, and proposed compliance orders for a probable violation of section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)). 8. Amending Sec. 190.207(c) to clarify that the Associate Administrator or his or her designee(s) may amend a NOPV but must provide an additional opportunity for response. 9. Amending Sec. 190.209(a)(1), relating to response options to NOPVs, to clarify that if an operator responds by paying a proposed civil penalty, such action serves to close only that particular allegation of violation and not the entire case. 10. Amending Sec. 190.209(a) to clarify that in responding to a NOPV, an operator may contest it in writing without requesting an in- person hearing. 11. Amending Sec. 190.209(c) to correct a typographical error by changing the reference from paragraph (c) to paragraph (b). 12. Amending language in existing Sec. 190.215(a), which is moved to Sec. 190.249, to clarify that a petition for reconsideration must include an explanation as to why the final order should be reconsidered, rather than an explanation of why the ``effectiveness'' of the final order should be stayed. 13. Amending Sec. 190.223(a) to clarify that the term ``civil penalty'' refers to ``administrative'' civil penalties. 14. Amending Sec. 190.227(a), relating to the payment of penalties, to allow payment of penalties under $10,000 to be made via `` www.pay.gov '' and to provide the correct address. 15. Amending Sec. Sec. 190.233 to clarify that CAOs are based upon a determination that a particular facility ``is or would be hazardous,'' which tracks the statutory language in 49 U.S.C. 60112, and to clarify that the closure of a CAO ``terminates'' it, as opposed to ``rescinding'' it. 16. Amending Sec. Sec. 190.239 and 190.341 to italicize the questions at the beginning of each lettered paragraph. 17. Amending Sec. 190.319, relating to extensions of time for rulemaking comment periods, to clarify that petitions for extensions of time to file comments must be addressed to PHMSA, as provided in Sec. 190.309. 18. Amending Sec. 190.321, relating to the contents of written comments, to remove the requirement to submit multiple copies of a rulemaking comment. 19. Amending Sec. 190.327(b), relating to hearings on proposed rulemakings, to clarify that procedures for rulemaking hearings do not apply to other types of hearings by deleting the phrase ``under this part'' and inserting ``under this subpart.'' 20. Amending Sec. 190.335(a) and removing Sec. 190.338(c), relating to the reconsideration of petitions for rulemaking and appeals, to remove the requirement to submit multiple copies of each. 21. For administrative purposes, Sec. Sec. 190.241, 190.243, 190.245, and 190.247 are added and reserved. 22. Amending Sec. Sec. 192.603(c), 193.2017(b), 195.402(b), and 199.101(b) to change the reference to Sec. 190.237 to Sec. 190.206. III. Rulemaking Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This notice of proposed rulemaking is published under the authority of the Federal Pipeline Safety Law (49 U.S.C. 60101 et seq.). Section 60102 authorizes the Secretary of Transportation to issue regulations governing design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. Section 60102(l) of the Federal Pipeline Safety Law states that the Secretary shall, to the extent appropriate and practicable, update incorporated industry standards that have been adopted as part of the Federal pipeline safety regulations. B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures This proposed rule is not considered a significant regulatory action under Section 3(f) of Executive Order 12866 and, therefore, is not subject to review by the Office of Management and Budget. This proposed rule is not significant under DOT Regulatory Policies and Procedures (44 FR 11034; Feb. 26, 1979). Executive Orders 12866 and 13563 require agencies to regulate in the most cost effective manner, to make a reasoned determination that the benefits of the intended regulation justify its costs, and to develop regulations that impose the least burden on society. As this proposed rule involves agency practice and procedure, proposes to conform agency procedural requirements to current public law, and does not recommend imposing any new substantive requirements on operators or the public, it has no significant economic impact on regulated entities. C. Executive Order 13132 This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (``Federalism''). This proposed rule does not introduce any regulation that: (1) Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on state and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. [[Page 48116]] Further, this proposed rule does not have an impact on federalism that warrants preparation of a federalism assessment. D. Executive Order 13175 This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (``Consultation and Coordination with Indian Tribal Governments''). This proposed rule does not significantly or uniquely affect the communities of the Indian tribal governments; therefore, the funding and consultation requirements of Executive Order 13175 do not apply. E. Executive Order 13211 This proposed rule is not a significant energy action under Executive Order 13211. It is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant, adverse effect on the supply, distribution, or use of energy. Furthermore, this proposed rule has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. F. Regulatory Flexibility Act As this proposed rule updates the Part 190 procedures in accordance with current public law and will have no direct or indirect economic impacts for government units, businesses, or other organizations, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. G. Paperwork Reduction Act This proposed rule contains no new information collection requirements or additional paperwork burdens. Therefore, submitting an analysis of the burdens to OMB pursuant to the Paperwork Reduction Act is unnecessary. H. Unfunded Mandates Reform Act This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more, as adjusted for inflation, to either state, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule. I. Environmental Assessment As this proposed rule amends agency administrative practice and procedure and does not impose any new substantive environmental requirements on operators or the public or change the environmental status quo in any way, there are no significant environmental impacts associated with this rule. List of Subjects 49 CFR Part 190 Administrative Practice and procedure; Penalties. 49 CFR Part 192 Pipeline safety, Fire Prevention, Security measures. 49 CFR Part 193 Pipeline safety, Fire prevention, Security measures. 49 CFR Part 195 Ammonia, Carbon dioxide, Incorporation by reference, Petroleum, Pipeline safety, Reporting and recordkeeping requirements. 49 CFR Part 199 Drug testing, alcohol misuse. For the reasons discussed in the preamble, PHMSA proposes to amend 49 CFR Subchapter C as follows: PART 190--PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES 1. The authority citation for part 190 is revised to read as follows: Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.; 49 CFR 1.53. PART 190--[AMENDED] 2. Part 190 is amended by revising the title to read: PART 190--PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES. PART 190--[AMENDED] 3. In part 190, revise all references to ``Associate Administrator, PHMSA'' to read ``Associate Administrator''. 4. In part 190, revise all references to ``Chief Counsel, PHMSA'' to read ``Chief Counsel''. 5. In part 190, revise all references to ``Associate Administrator, OPS'' to read ``Associate Administrator''. Sec. 190.1 [Amended] 6. In Sec. 190.1, paragraph (a) is amended by removing the phrase ``and 49 U.S.C. 5101 et seq. (the hazardous material transportation laws)''. 7. In Sec. 190.3, the definition of ``Presiding Official'' is revised and the new definitions for ``Associate Administrator,'' ``Chief Counsel,'' ``Day,'' and ``Operator'' are added in alphabetical order to read as follows: Sec. 190.3 Definitions. * * * * * Associate Administrator means the Associate Administrator for Pipeline Safety. Chief Counsel means the Chief Counsel of the PHMSA. Day means a 24-hour period ending at 11:59 p.m. * * * * * Operator means any or all of the owners or operators. * * * * * Presiding official means the person who conducts any hearing relating to civil penalty assessments, compliance orders, safety orders, or corrective action orders and who has the duties and powers set forth in Sec. 190.212. * * * * * 8. In Sec. 190.7, paragraphs (a) and (d) are revised to read as follows: Sec. 190.7 Subpoenas; witness fees. (a) The Administrator, the Chief Counsel, or an official designated by the Administrator may sign and issue subpoenas individually on his or her own initiative at any time. Such times may include during an inspection or investigation or, upon request and adequate showing by a participant to an enforcement proceeding, that the information sought will materially advance the proceeding. * * * * * (d) Service of a subpoena upon the person named in the subpoena is achieved by delivering a copy of the subpoena to the person and by paying the fees for one day's attendance and mileage as specified by paragraph (g) of this section. Service of a subpoena can also be made by certified or registered mail to the person at the last known address. Service is complete upon mailing. When a subpoena is issued at the instance of any officer or agency of the United States, fees and mileage need not be tendered at the time of service. Delivery of a copy of a subpoena and tender of the fees to a natural person may be made by handing them to the person, leaving them at the person's office with a person in charge, leaving them at the person's residence with a person of suitable age and discretion residing there, or by any method whereby actual notice is given to the person and the fees are made available prior to the return date. * * * * * 9. In Sec. 190.11, paragraphs (a) and (b) are revised to read as follows: Sec. 190.11 Availability of informal guidance and interpretive assistance. (a) Availability of telephonic and Internet assistance. PHMSA has [[Page 48117]] established a Web site and a telephone line to OPS headquarters where information on and advice about compliance with the pipeline safety regulations specified in 49 CFR parts 190-199 is available. The Web site and telephone line are staffed by personnel from PHMSA's OPS from 9:00 a.m. through 5:00 p.m., Eastern Time, Monday through Friday, with the exception of Federal holidays. When the lines are not staffed, individuals may leave a recorded voicemail message or post a message on the OPS Web site. The telephone number for the OPS information line is (202) 366-4595 and the OPS Web site can be accessed via the Internet at http://phmsa.dot.gov/pipeline (b) Availability of written interpretations. A written regulatory interpretation, response to a question, or an opinion concerning a pipeline safety issue may be obtained by submitting a written request to the Office of Pipeline Safety (PHP-30), PHMSA, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. The requestor must include his or her return address and should also include a daytime telephone number. Written requests should be submitted at least 120 days before the time the requestor needs a response. * * * * * 10. In Sec. 190.201, paragraph (a) is revised to read as follows: Sec. 190.201 Purpose and scope. (a) This subpart describes the enforcement authority and sanctions exercised by the Associate Administrator for achieving and maintaining pipeline safety and compliance under 49 U.S.C. 60101 et seq., section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)), and any PHMSA regulation or order issued thereunder. It also prescribes the procedures governing the exercise of that authority and the imposition of those sanctions. * * * * * 11. In Sec. 190.203, paragraph (b)(6) and paragraphs (c), (e), and (f) are revised to read as follows: Sec. 190.203 Inspections and investigations. * * * * * (b) * * * (6) Whenever deemed appropriate by the Associate Administrator, or his or her designee. (c) If the Associate Administrator believes that further information is needed to determine appropriate action, the Associate Administrator may notify the pipeline operator in writing that the operator is required to provide specific information within a period specified by the Associate Administrator, but no later than 30 days from the time the notification is received by the operator. The notification must provide a reasonable description of the specific information required. * * * * * (e) If a representative of the U.S. Department of Transportation inspects or investigates an incident involving a pipeline facility, the operator must make available to the representative all records and information that pertain to the incident in any way, including integrity management plans and test results. The operator must provide all reasonable assistance in the investigation. Any person who obstructs an inspection or investigation by taking actions that were known or reasonably should have been known to prevent, hinder, or impede an investigation without good cause will be subject to administrative civil penalties under this subpart. (f) When OPS determines that the information obtained from an inspection or from other appropriate sources warrants further action, OPS may initiate one or more of the enforcement proceedings prescribed in this subpart. 12. Section 190.205 is revised to read as follows: Sec. 190.205 Warning letters. Upon determining that a probable violation of 49 U.S.C. 60101 et seq., section 4202 of the Oil Pollution Act of 1990 (33 U.S.C. 1321(j)), or any regulation or order issued thereunder has occurred, the Associate Administrator or his or her designee(s) may issue a Warning Letter notifying the owner or operator of the probable violation and advising the owner or operator to correct it or be subject to potential enforcement action under this subpart. The owner or operator may submit a response to the Warning Letter but is not required to. 13. Add Sec. 190.206 to subpart B to read as follows: Sec. 190.206 Amendment of plans or procedures. (a) A Regional Director begins a proceeding to determine whether an operator's plans or procedures required under parts 192, 193, 194, 195, and 199 of this subchapter are inadequate to assure safe operation of a pipeline facility by issuing a notice of amendment. The notice will specify the alleged inadequacies and the proposed action for revision of the plans or procedures and provide an opportunity for a hearing under Sec. 190.211 of this Part. The notice will allow the operator 30 days after receipt of the notice to submit written comments, revised procedures, or request a hearing. After considering all material presented in writing or at the hearing if applicable, the Associate Administrator determines whether the plans or procedures are inadequate as alleged and orders the required amendment if they are inadequate, or withdraws the notice if they are not. In determining the adequacy of an operator's plans or procedures, the Associate Administrator may consider: (1) Relevant available pipeline safety data; (2) Whether the plans or procedures are appropriate for the particular type of pipeline transportation or facility, and for the location of the facility; (3) The reasonableness of the plans or procedures; and (4) The extent to which the plans or procedures contribute to public safety. (b) The amendment of an operator's plans or procedures prescribed in paragraph (a) of this section is in addition to, and may be used in conjunction with, the appropriate enforcement actions prescribed in this subpart. 14. In Sec. 190.207, paragraphs (a) and (c) are revised to read as follows: Sec. 190.207 Notice of probable violation. (a) Except as otherwise provided by this subpart, a Regional Director begins an enforcement proceeding by serving a notice of probable violation on a person and charging that person with a probable violation of 49 U.S.C. 60101 et seq., section 4
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