{"operation":"document","citation":"78 FR 58897","title":"Pipeline Safety: Administrative Procedures; Updates and Technical Corrections","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2013-09-25","effective_on":"2013-10-25","summary":"PHMSA is amending the pipeline safety regulations to update the administrative civil penalty maximums for violation of the safety standards to reflect current law, to update the informal hearing and adjudication process for pipeline enforcement matters to reflect current law, and to make other technical corrections and updates to certain administrative procedures. The amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2013-23047.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2013-23047.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2013-23047","source_url":"https://www.federalregister.gov/documents/2013/09/25/2013-23047/pipeline-safety-administrative-procedures-updates-and-technical-corrections","body":"Federal Register, Volume 78 Issue 186 (Wednesday, September 25, 2013) [Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)] [Rules and Regulations] [Pages 58897-58915] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2013-23047] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 190, 192, 193, 195, and 199 [Docket No. PHMSA-2012-0102; Amdt. Nos. 190-16, 192-118, 193-24, 195- 98, 199-25] RIN 2137-AE92 Pipeline Safety: Administrative Procedures; Updates and Technical Corrections AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA is amending the pipeline safety regulations to update the administrative civil penalty maximums for violation of the safety standards to reflect current law, to update the informal hearing and adjudication process for pipeline enforcement matters to reflect current law, and to make other technical corrections and updates to certain administrative procedures. The amendments do not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators. DATES: The effective date of these amendments is October 25, 2013. FOR FURTHER INFORMATION CONTACT: Kristin T.L. Baldwin, Office of Chief Counsel, 202-366-6139, [email protected] ; or mail to: Renita K. Bivins, Office of Chief Counsel, 202-366-5947, [email protected] . SUPPLEMENTARY INFORMATION: I. Background A. Notice of Proposed Rulemaking On August 13, 2012, PHMSA published a Notice of Proposed Rulemaking (NPRM) under Docket ID PHMSA-2012-0102, (77 FR 48112) notifying the public of the proposed changes to 49 CFR Parts 190, 192, 193, 195, and 199. The amendments proposed in the NPRM were intended to implement mandates in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-90) (the 2011 Act) and to make other technical and administrative corrections. During the 30-day comment period, PHMSA received a total of five comments. Three comments were from trade organizations, including the Interstate Natural Gas Association of America (INGAA), the Association of Oil Pipelines and the American Petroleum Institute (AOPL/API), and the American Gas Association (AGA). One comment was received from a pipeline operator, who solely endorsed the comments of INGAA. The final comment was received from a private citizen. B. Advisory Committee Meetings On December 11-13, 2012, the Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC) met jointly in Alexandria, Virginia. The TPSSC and THLPSSC are statutorily mandated advisory committees under 49 U.S.C. 60115 that provide non-binding recommendations to PHMSA on proposed safety standards, risk assessments, and safety policies for natural gas and hazardous liquid pipelines. Although the NPRM did not implicate the committees' statutory mandate with regard to proposed safety standards, PHMSA requested input from the committees given the potential impact on administrative enforcement processes. After considering the NPRM and public comments, the TPSSC recommended approval of the NPRM as proposed. The THLPSSC recommended approval of the NPRM, with unspecified modifications consistent with the public comments and certain principles, including transparency, completeness, increased formality, timeliness, regulatory certainty, and due process. II. Discussion of Comments The comments received from the trade organizations and the THLPSSC are discussed below. The comment from the private citizen is not discussed because it was outside the scope of this rulemaking. To facilitate the reader, the following list of contents is provided: Subpart A--General 1. Sec. 190.1 Purpose and scope. 2. Sec. 190.3 Definitions. 3. Sec. 190.5 Service. 4. Sec. 190.7 Subpoenas; witness fees. 5. Sec. 190.11 Availability of informal guidance and interpretive assistance. Subpart B--Enforcement 6. Sec. 190.201 Purpose and scope. [[Page 58898]] 7. Sec. 190.203 Inspections and investigations--requests for specific information. 8. Sec. 190.203 Inspections and investigations--obstructing an investigation. 9. Sec. 190.205 Warnings. 10. Sec. 190.206 Amendment of plans or procedures (redesignated from Sec. 190.237). 11. Sec. 190.207 Notice of probable violation. 12. Sec. 190.208 Response options (redesignated from Sec. 190.209). 13. Sec. 190.209 Case file (new section). 14. Sec. 190.210 Separation of functions (new section). 15. Sec. 190.211 Hearing--exchange of evidentiary material and withdrawal. 16. Sec. 190.211 Hearing--formality. 17. Sec. 190.211 Hearing--transcripts. 18. Sec. 190.211 Hearing--recommended decision. 19. Sec. 190.212 Presiding official, powers, and duties (new section). 20. Sec. 190.213 Final order. 21. Sec. 190.217 Compliance orders generally. 22. Sec. 190.219 Consent order. 23. Sec. 190.221 Civil penalties generally. 24. Sec. 190.223 Maximum penalties. 25. Sec. 190.225 Assessment considerations. 26. Sec. 190.227 Payment of penalty. 27. Sec. 190.233 Corrective action orders. 28. Sec. 190.239 Safety orders. 29. Sec. 190.241 Finality (new section). 30. Sec. 190.243 Petitions for reconsideration (redesignated from Sec. 190.215). Subpart C--Criminal Enforcement (New Subpart) 31. Sec. 190.291 Criminal penalties generally (redesignated from Sec. 190.229). 32. Sec. 190.293 Referral for prosecution (redesignated from Sec. 190.231). Subpart D--Procedures for Adoption of Rules (Redesignated From Subpart C) 33. Sec. 190.319 Petitions for extension of time to comment. 34. Sec. 190.321 Contents of written comments. 35. Sec. 190.327 Hearings. 36. Sec. 190.335 Petitions for reconsideration. 37. Sec. 190.337 Proceedings on petitions for reconsideration. 38. Sec. 190.338 Appeals. 39. Sec. 190.341 Special permits. Amendments to Parts 192-199 40. Sec. 192.603 General provisions. 41. Sec. 193.2017 Plans and procedures. 42. Sec. 195.402 Procedural manual for operations, maintenance, and emergencies. 43. Sec. 199.101 Anti-drug plan. Subpart A--General 1. Purpose and Scope (Sec. 190.1) The NPRM proposed to amend Sec. 190.1(a) to remove the citation to the hazardous materials transportation laws. PHMSA did not receive any comments and is adopting the amendment. Consistent with other amendments in this rule, PHMSA is adding a reference to the Federal Water Pollution Control Act (33 U.S.C. 1321) in accordance with section 10 of the 2011 Act. 2. Definitions (Sec. 190.3) The NPRM proposed to amend the definition of ``Presiding Official'' and to add new definitions for ``Associate Administrator,'' ``Chief Counsel,'' ``Day,'' and ``Operator.'' No comments were received regarding the definitions. PHMSA is adopting the definitions with minor changes. A revised definition of ``Associate Administrator,'' which includes his or her delegate, is adopted. The definition of ``Day'' is revised to clarify that it means a calendar day, unless otherwise noted. PHMSA is also clarifying the definition of a ``Respondent'' includes the recipient of any enforcement action under Subpart B of Part 190. 3. Service (Sec. 190.5) PHMSA did not propose to amend Sec. 190.5, but INGAA requested that PHMSA amend Sec. 190.5(b) by designating specific individuals that may be served with notices, orders, or other PHMSA documents. INGAA proposed that PHMSA adopt a practice under which operators designate certain individuals to receive service and then have a continuing obligation to update that information. INGAA stated that its members could provide this information while updating gas transmission annual reports. INGAA noted that, in the experience of its members, enforcement notices and orders are often served on various field offices and officials without direct responsibility for compliance. INGAA also proposed that PHMSA modify Sec. 190.5(c) to provide that service by mail is complete upon actual receipt and not upon mailing, as is stated in the current regulatory language. INGAA referenced certain sections of Part 190 in which the response time frame is triggered by respondent's receipt of the relevant document, and other sections where the response period seems to be triggered by mailing. To avoid shortening operators' response times and to establish consistency throughout Part 190, INGAA suggested that PHMSA adopt service upon receipt as the more equitable option. Response: With regard to designating an individual for service, PHMSA notes that most operators already include the name of a senior executive officer on their annual reports. In response to the comments, however, PHMSA is considering changes to the annual reporting forms to allow all operators to designate a senior executive for the specific purpose of service of enforcement actions. Changes to the annual reporting form would be proposed in a future rulemaking action. In the meantime, as an internal policy, PHMSA now advises that all official notices of enforcement action be addressed to the most senior executive officer (e.g., President or Chief Executive Officer). PHMSA believes this is an appropriate mechanism for ensuring enforcement notices are served on an operator. With regard to when service is effective, there are certain response deadlines in Part 190 that are triggered upon actual receipt of the document, even though service itself is effective upon mailing by certified mail. For example, a respondent has 30 days from receipt to respond to a notice of probable violation and 20 days from receipt of a final order to pay an assessed civil penalty. By comparison, a respondent has 20 days from service to file a petition for reconsideration under Sec. 190.215 and 10 days from service to request a hearing on a corrective action order under Sec. 190.233. In response to the comment, PHMSA is amending Sec. 190.243 (formerly Sec. 190.215) and Sec. 190.233 to clarify that the filing periods run from receipt and not the date of mailing. Service of the notice or order in an enforcement proceeding by certified mail will continue to be effective upon mailing, which is consistent with the manner in which other Federal agencies serve such documents. Based on these amendments, PHMSA is not amending Sec. 190.5(c) in the manner suggested by the comment. PHMSA is, however, amending the regulation to remove references to registered mail as that method of service is not presently used. 4. Subpoenas; Witness Fees (Sec. 190.7) PHMSA proposed to amend Sec. 190.7(a) to clarify that the agency is authorized by statute to issue subpoenas for any reason to carry out its duties at any time, both during the investigative phase of an enforcement action and pursuant to a hearing. PHMSA also proposed to amend Sec. 190.7(d) to harmonize the service of subpoenas with the service of other documents under Sec. 190.5 to reflect that service by certified mail is complete upon mailing. Comments: No comments were received with respect to Sec. 190.7(a). AOPL/API objected to the proposed amendment to Sec. 190.7(d) on the basis that it would be inconsistent with (1) the requirement that mailing be completed by certified or registered mail, both of which require signature of [[Page 58899]] the recipient; and (2) the provision in Sec. 190.7(d) that service may be achieved by ``any method whereby actual notice is given to the person.'' AOPL/API asserted that it is inappropriate to deem that service upon mailing achieves ``actual notice.'' Response: PHMSA is adopting the amendment to Sec. 190.7(a) as proposed. The amendment to Sec. 190.7(d) was proposed to harmonize service of a subpoena with Sec. 190.5, which states that service is complete upon mailing for documents served by certified mail. Nevertheless, in response to the comments, PHMSA is withdrawing the proposal to amend Sec. 190.7(d). PHMSA is also removing references to registered mail as that method of service is not presently used. 5. Availability of Informal Guidance and Interpretive Assistance (Sec. 190.11) The NPRM proposed to remove language that the Office of Pipeline Safety (OPS) would respond to inquiries related to the pipeline safety regulations by the next business day because OPS has not always been able to meet this deadline. PHMSA also proposed to remove Sec. 190.11(a)(2) and (b)(2) to eliminate the availability of informal guidance directly from the Office of Chief Counsel (OCC). Comments: AOPL/API commented that PHMSA should retain Sec. 190.11(a)(2) and (b)(2) to further regulatory certainty, administrative efficiency, and the conservation of agency resources. The comment stated that the availability of written legal interpretations avoids mistaken regulatory interpretations, allows for the allocation of resources towards pipeline safety, and provides parties outside the regulated community with a potential resource. AOPL/API also noted that PHMSA failed to provide an explanation for the agency's proposal to withdraw the availability of guidance and legal interpretations from the OCC. Response: Under Sec. 190.11, OPS provides guidance regarding compliance with the pipeline safety regulations through telephonic and internet assistance, written regulatory interpretations, and responses to questions or opinions concerning pipeline safety issues. The OCC has customarily provided legal assistance through these processes by assisting OPS in the development of written responses to requests for interpretations. PHMSA believes having OPS serve as a single point of contact for guidance and interpretive assistance will permit more efficient handling of these types of requests. The OCC will continue to provide legal assistance through this process. Accordingly, PHMSA is adopting the amendments as proposed. Subpart B--Enforcement 6. Purpose and Scope (Sec. 190.201) The NPRM proposed to amend Sec. 190.201 to include 33 U.S.C. 1321(j) within the scope of the enforcement procedures enumerated in Subpart B, consistent with section 10 of the 2011 Act. PHMSA received no comments on this proposed amendment. Therefore, PHMSA adopts the amendment as proposed. 7. Inspections and Investigations--Requests for Specific Information (Sec. 190.203) In the NPRM, PHMSA proposed to revise Sec. 190.203(c) to allow for the issuance of a request for information (sometimes referred to as a ``request for specific information'' or ``RSI'') at any time, rather than only pursuant to an inspection, and to require operators to respond to such a request no later than 30 days, rather than 45 days. Comments: AOPL/API commented that PHMSA should implement both a minimum 15 day response period and a maximum 45 day response deadline, or in the alternative, require the Associate Administrator to extend the proposed deadline upon reasonable request of the operator. Given that an RSI could require the collection of complex and voluminous records, necessitating ongoing collaboration with PHMSA, AOPL/API opposed shortening the response deadline. INGAA expressed a concern that the proposed change would impinge on an operator's due process rights by unreasonably circumscribing the ability of an operator to collect the requested information within the allotted time. It also stated that a process for contesting the scope and response deadline should be made explicit in the regulations. Response: Based on its experience, PHMSA continues to believe that in most cases, operators can reasonably respond to an RSI within 30 days. To address the comments, however, PHMSA is adopting an option for the operator to request an extension of time and to propose an alternative submission date. An operator requesting an extension may request that the deadline for submission of the information be stayed while the extension is considered. PHMSA is further changing the proposed language to provide that, while the default response time is 30 days, an RSI may provide another response time. Thus, depending on the scope of the request, the RSI may provide a longer or, if reasonable, a shorter response time. Due to the time-sensitive nature of some investigations and the need for PHMSA to maintain the maximum information collection authority prescribed by statute, PHMSA declines to adopt a 15-day minimum response period. Finally, we believe it is unnecessary to adopt a process for contesting an RSI, but will consider any issues on a case-by-case basis. 8. Inspections and Investigations--Obstructing an Investigation (Sec. 190.203) In the NPRM, PHMSA proposed to amend Sec. 190.203(e) to implement section 2 of the 2011 Act, which requires operators to afford all reasonable assistance in the investigation of an accident or incident and to make available all records and information that pertain to the accident or incident. The proposed amendment further provides that any person obstructing such an investigation can be subject to civil penalties under Sec. 190.223. Comments: AOPL/API stated that the proposed amendment does not allow for circumstances where an operator may possess responsive documents that it is either legally barred from disclosing or may decline to provide on the basis that it includes proprietary or confidential information. AOPL/API therefore requested that PHMSA exclude any records and information legally protected or barred from disclosure by Federal or State law or court order. Response: PHMSA routinely receives proprietary or confidential information from operators related to enforcement actions and is required to screen those documents before releasing them under the Freedom of Information Act. Through these existing controls, which include consultation with the operator before disclosure and an opportunity for the operator to object to disclosure, information that should not be publically disclosed can be protected. Accordingly, PHMSA is adopting the amendment as proposed. 9. Warnings (Sec. 190.205) In the NPRM, PHMSA proposed to amend Sec. 190.205 to clarify that an operator may respond to a warning letter. PHMSA also proposed to clarify that a warning may be issued for a probable violation of 33 U.S.C. 1321(j) or a PHMSA order or regulation issued thereunder. Comments: AOPL/API requested modification of the proposal to permit operators to initiate hearings on warning items and to require that PHMSA address warning items in a final order if contested by a respondent. The [[Page 58900]] comment reasoned that warning letters can subject a respondent to further enforcement action or influence a civil penalty assessment and therefore, PHMSA should allow for increased due process. Response: A warning letter or a warning item contained in a notice of probable violation is an allegation that OPS identified a potential issue, which if found in a future inspection, may subject the operator to future enforcement action. Warnings allow an operator to address a potential compliance issue before the next inspection to avoid a potential enforcement action. Warnings are complete upon issuance and PHMSA does not make subsequent findings as to whether the factual allegations in the warning were proven by evidence in the record. Accordingly, a warning by itself is never the basis for a civil penalty or compliance order in the proceeding in which the warning is brought. An operator may respond to a warning if it chooses by providing additional information. If an operator submits objections to a warning item contained in a notice of probable violation, the final order issued in that case should note the respondent's comments. Again, PHMSA does not adjudicate the warning to determine if the allegations were proven. Accordingly, PHMSA believes it is not necessary to adopt a formal process for addressing warnings. PHMSA is amending the regulation to clarify that an operator may respond to a warning, but no adjudication is conducted on warning items. 10. Amendment of Plans or Procedures (Sec. 190.206, Redesignated From Sec. 190.237) The NPRM proposed to redesignate the section governing amendment of plans or procedures from Sec. 190.237 to Sec. 190.206 for organizational purposes. PHMSA did not receive any comments and is adopting the amendment. 11. Notice of Probable Violation (Sec. 190.207) PHMSA proposed several amendments to Sec. 190.207, including amending Sec. 190.207(a) to clarify that a notice of probable violation (NOPV) may be issued for a probable violation of 33 U.S.C. 1321(j) or a PHMSA order or regulation issued thereunder. PHMSA also proposed amending Sec. 190.207(c) to clarify that a Regional Director may amend the notice of probable violation prior to issuance of a final order. Comments: PHMSA did not receive any comments on the proposed amendments, but received a comment regarding documentation that should be included with an NOPV. INGAA stated that when serving an NOPV, PHMSA should include the agency's ``violation report.'' The violation report is an inspection report prepared by the Regional Director or inspector in each case to support the NOPV. It contains the evidence of the alleged violation and, if applicable, the identification of factors that influence the proposed civil penalty. Currently, operators may request the violation report at any time following receipt of an NOPV. INGAA encouraged PHMSA to automatically include the violation report when serving the NOPV to promote settlement, encourage early dispute resolution, and provide respondents with pertinent materials at the outset of an enforcement action. Response: PHMSA has considered the comment by INGAA and continues to agree that respondents should have access to the violation report as early as practicable. PHMSA notes, however, that not all respondents request the violation report in each case. Violation reports can be voluminous, exceeding hundreds of pages particularly if there are copies of the operator's own procedures and records. To save the expense of unnecessarily duplicating and sending large volumes of documents in cases where a respondent would not otherwise request them, PHMSA is not adopting INGAA's suggestion to provide the violation report automatically in every case. To ensure the violation report is made available to a respondent as soon as practicable, PHMSA is amending Sec. 190.208 as set forth below to: (1) Clarify that respondents may request the violation report at any time following receipt of an NOPV; and (2) Require the Regional Director to provide the violation report to a respondent within five business days of receiving the request. PHMSA is also amending Sec. 190.209 to reference the violation report as part of the case file that may be requested by the respondent. 12. Response Options (Sec. 190.208, Redesignated From Sec. 190.209) PHMSA proposed to amend the response options (formerly at Sec. 190.209) to clarify the available options when responding to an NOPV. In summary, a respondent may choose not to contest an NOPV, to contest an NOPV in writing without requesting a hearing, or to request a hearing. The NPRM also proposed to correct a cross-reference in the regulation. Comments: INGAA requested several changes to the regulation, including adding an option to respond in writing to compliance order cases where the respondent does not request a hearing, and an option for a respondent to request the execution of a consent order under Sec. 190.219 when the NOPV proposes a civil penalty. INGAA requested that a respondent have 30 days from receipt of the evidentiary material to submit its written response. Alternatively, INGAA requested that a respondent receive all evidentiary material within two business days of its request. Response: For organizational purposes, PHMSA is redesignating this regulation as Sec. 190.208. The rule clarifies that an operator may contest any NOPV in writing with or without requesting a hearing. As to INGAA's suggestion that PHMSA explicitly allow for the execution of a consent order in civil penalty cases, PHMSA declines to adopt a formal regulation accepting offers of settlement in civil penalty cases for the reason stated below under Sec. 190.219. As to INGAA's request to amend the response period or require evidentiary material within two business days, PHMSA notes that such evidentiary material will be contained in the violation report, which the Regional Director will provide to a respondent within five business days of receiving a request. If a respondent in a particular case believes additional time is necessary to respond following receipt of the violation report, the respondent may submit a timely request in writing to the Regional Director explaining the reason for the extension request. Accordingly, PHMSA believe it is unnecessary to adopt the changes to the response deadline suggested by the commenter. 13. Case File (Sec. 190.209, New Section) The NPRM did not propose a new regulation to describe the case file in an enforcement proceeding, but multiple commenters requested certain documents be made part of the case file available to the respondent. In particular, INGAA commented that in order for PHMSA to prohibit ex parte communications and incorporate increased transparency into the decision making process, the regulations must explicitly recognize that the regional recommendation is part of the case file provided to the respondent. In addition, INGAA commented that respondents must be afforded time to review and respond to the recommendation. AOPL/API commented that, to ensure due process and basic fairness in both the administrative process and upon judicial review, the respondent should [[Page 58901]] be provided certain case file materials that are not currently provided to the respondent, including (1) the evaluation and recommendation submitted by the Regional Director; (2) the recommended decision submitted by the Presiding Official or attorney from the OCC; and (3) the factual and analytical bases for civil penalties. Response: PHMSA recognizes that the 2011 Act prohibits ex parte communications and that both the regulatory language and practices of the agency must conform. Restrictions on ex parte communications are discussed in greater detail under Sec. 190.210. In light of these comments, PHMSA is creating a new Sec. 190.209 that describes the contents of the case file for each type of enforcement action, including cases involving a notice of amendment issued under Sec. 190.206, NOPV issued under Sec. 190.207, corrective action order issued under Sec. 190.233, and safety order issued under Sec. 190.239. PHMSA is adopting language that explicitly recognizes the region recommendation is part of the case file that is available to a respondent in all cases. As a result of this new section, PHMSA is deleting Sec. 190.213(b), which previously described the contents of the file for cases involving an NOPV. As to AOPL/API's recommendation that PHMSA provide the Presiding Official's recommended decision submitted to the Associate Administrator, PHMSA considers that document to be an internal and deliberative communication or ``draft decision.'' Consequently, PHMSA is not amending the regulations to provide the recommended decision. As for the actual and analytical bases for civil penalties, PHMSA notes that the violation report, which may be requested in all cases, includes the identification of the assessment factors that influence the proposed civil penalty in a given case. By reviewing the violation report, a respondent will be able to apprehend and respond to those factors. In addition, PHMSA currently provides, upon request, a general outline of how civil penalties are calculated. 14. Separation of Functions (Sec. 190.210, New Section) To implement section 20 of the 2011 Act, PHMSA proposed a new Sec. 190.210 that explains the separation of functions between enforcement personnel, who are involved in the investigation and prosecution of an enforcement case, and personnel who make (or assist in making) findings and determinations. The section also proposed to prohibit ex parte communications in enforcement cases. Comments: PHMSA received multiple comments on this proposal. First, INGAA suggested that Sec. 190.210(a) should delineate the Presiding Official's adjudicative role by specifically providing that, in cases where a hearing is held, the Presiding Official will not be engaged in any investigative or prosecutorial functions. Second, INGAA commented that proposed Sec. 190.210(b) did not fully extend the 2011 Act's ex parte provision to attorneys from the OCC who prepare recommended decisions in non-hearing cases. INGAA suggested a modification to Sec. 190.210(b) that would explicitly reference attorneys who prepare such recommended decisions. Third, INGAA commented that when rendering a decision in hearing cases, the Associate Administrator should consider only the NOPV, the operator's response, materials presented at a hearing, the hearing transcript, and the recommended decision. Any other communications or reports between decisional employees and non-decisional employees would impinge on basic due process principles. However, INGAA acknowledged that these communications could be allowed in certain instances, particularly where respondents are afforded access and an opportunity to respond. INGAA also suggested that PHMSA should revise the language of the ex parte prohibition proposed in Sec. 190.210(b) to include remarks concerning a respondent's past conduct or credibility. INGAA proposed PHMSA change the proposed ``information that is material to the question to be decided in the proceeding material'' to ``the facts, evidence, and legal arguments in the proceeding, the merits of the case, and the respondent's credibility and past conduct.'' Lastly, AOPL/API requested that PHMSA emphasize in the regulations, including Sec. 190.207(a), that Regional Directors do not serve in an advisory capacity for the agency. Response: With regard to the first comment, Sec. 190.210(a) is broad enough to encompass the role of the Presiding Official in hearing cases. In addition, the role of the Presiding Official is more fully addressed under Sec. 190.212, which states that the Presiding Official may not be engaged in any prosecutorial or investigative functions under this subpart. Accordingly, PHMSA believes it is unnecessary to explicitly reference the Presiding Official in Sec. 190.210(a). In response to INGAA's second comment on ex parte communications, PHMSA is amending Sec. 190.210(b) to reference attorneys from the OCC who prepare recommended decisions in non-hearing cases. Third, PHMSA is amending Sec. 190.208 to include the Regional Director's recommendation as part of the case file that will be provided to respondents in all cases. This will increase transparency, avoid ex parte communications, and promote due process. With regard to INGAA's final comment, PHMSA believes it is unnecessary to adopt the suggested definition of ex parte communications. The language proposed in the NPRM resembles the language in the 2011 Act and is broad enough to encompass any information that could potentially affect the decision, its evidentiary findings, legal rationale, penalty assessments or other determinations. Information concerning a respondent's past conduct, to the extent it resulted in prior violations, may influence a civil penalty, but that information must be contained in the violation report to have any bearing in the case. Lastly, PHMSA believes the above changes satisfy the comments of AOPL/API. The Regional Director's recommendation does not constitute advice, but is merely a summary of his or her position on the case following receipt of the respondent's evidence and explanations. Such a statement of position, whether labeled a recommendation or otherwise, is consistent with the Region's enforcement and prosecutorial role. Operators will now receive the recommendation in all cases. 15. Hearing--Exchange of Evidentiary Material and Withdrawal (Sec. 190.211) PHMSA proposed a number of amendments to Sec. 190.211 to clarify the manner in which informal hearings are conducted. Among the changes, the NPRM proposed to amend: Sec. 190.211(b) to state that a respondent may withdraw a hearing request in writing and, if permitted by the presiding official, supplement the record with a written submission in lieu of a hearing; Sec. 190.211(c) to provide that hearings in civil penalty cases under $25,000 will be held by telephone conference, unless either party requests an in-person hearing; Sec. 190.211(d) to clarify that all evidentiary material on which OPS intends to rely at a hearing, to the extent possible, must be provided at respondent's request prior to a hearing; and Sec. 190.211(e) to state that a respondent must submit the material it intends to use to rebut the allegation of violation at least 10 calendar days prior to the date of the hearing. [[Page 58902]] Comments: AOPL/API objected to the proposed language in Sec. 190.211(b), which it stated appeared to authorize the Presiding Official to prevent a respondent from withdrawing a hearing request. With regard to Sec. 190.211(d) and (e), INGAA commented that the burden of producing evidentiary material was unfairly tilted toward OPS and should be adjusted to allow the respondent an opportunity to review and prepare a response to PHMSA's evidentiary material prior to a hearing. AOPL/API also objected to the proposed hearing submission timelines, allowing OPS to provide case files ``to the extent practicable'' but requiring the respondent to submit its materials 10 days before a hearing. AOPL/API suggested that OPS submit all evidentiary material, including the case file, within 30 days of a hearing. Under this scenario, in order that respondents can evaluate OPS's evidentiary material, the respondent's submission would be due 10 calendar days prior to a hearing. AGA commented that both parties should be required to submit records that they will rely on prior to a hearing to ensure a complete and efficient hearing. The THLPSCC recommended approval of the NPRM if PHMSA made modifications consistent with the comments filed in response to the NPRM and principles of: Transparency; completeness/increased formality; timeliness/regulatory certainty; and due process. The THLPSCC elaborated that ``access and production of relevant information should apply equally to PHMSA staff and the respondent.'' Response: To avoid confusion with regard to Sec. 190.211(b), PHMSA is clarifying that a respondent may withdraw a hearing request and provide a written response. With regard to Sec. 190.211(d) and (e), PHMSA notes that a respondent will be able to request the evidentiary material in the case (i.e., the violation report) well in advance of a hearing under Sec. Sec. 190.208 and 190.209. It is rare that a Region has any additional evidentiary material to provide prior to the hearing that is not already contained in the violation report. Accordingly, PHMSA believes it is unnecessary to adopt the suggestion to require OPS to submit its case file and evidentiary material 30 days in advance of a hearing. However, to further guarantee that access to, and production of, relevant information applies equally to both parties, PHMSA is amending Sec. 190.211(d) to provide that both the respondent and OPS must submit all evidentiary material 10 days prior to a hearing unless the Presiding Official sets a different deadline or waives the deadline for good cause. Again, since the violation report is available to the respondent soon after receiving an NOPV, there will rarely be any additional evidentiary material to be provided by OPS. These changes should address the comments regarding fairness and equanimity. 16. Hearing--Formality (Sec. 190.211) As part of the clarification and reorganization of Sec. 190.211, the NPRM proposed to redesignate Sec. 190.211(d) as Sec. 190.211(f) and to clarify that: The hearing is conducted informally; the Presiding Official regulates the course of the hearing and gives each party an opportunity to participate; and after the evidence has been presented, the Presiding Official may permit discussion on the issues under consideration. Comments: AOPL/API commented that the seriousness of hearing cases and the need to compile a detailed and accurate record for potential judicial review should require a measure of formality for hearings. INGAA proposed that PHMSA should include an option for operators to elect a formal hearing before an Administrative Law Judge (ALJ) ``where warranted by the size and complexity of the case.'' INGAA acknowledged that, while the current hearing process works well for the majority of cases, ALJ hearings would advance due process in certain complex cases with large civil penalties by further separating the decision maker from those performing investigative duties and harmonizing pipeline enforcement with hazmat enforcement, which allows for ALJ hearings. INGAA also requested that, alternatively, in large or complicated hearing cases, the parties be allowed to present oral arguments directly to the Associate Administrator during his or her review of a recommended decision, rather than having the Associate Administrator decide a case solely on the basis of the Presiding Official's recommendation. Finally, AOPL/API commented that the proposed Sec. 190.211(f) states that the Presiding Official ``may'' permit post-evidentiary discussion, in contrast to the original regulation that states post- evidentiary discussion must be permitted. Response: PHMSA acknowledges that respondents have an interest in proceedings that reflect both the complexity of the case and the amount of the civil penalty or corrective action. Despite referring to pipeline enforcement hearings as ``informal,'' the hearings actually follow a standard process and protocol that protects a respondent's rights. The process allows for complete written briefing of the issues both before and after the hearing, representation by counsel, production of evidence, testimony by witnesses, and cross-examination. Respondents may also make arrangements for their hearing to be transcribed for the case file. For these reasons, PHMSA believes it is unnecessary to adopt additional procedures to make the hearing process more formal. With regard to the use of ALJ's specifically, PHMSA believes the existing process adequately addresses the due process concerns even in the most complex cases. Over the years, PHMSA has dealt successfully with complex cases involving large civil penalties and amassed considerable institutional knowledge in rendering decisions in these types of cases. By referring cases to an ALJ, the benefit of the informal nature of pipeline hearings would be undermined to the detriment of the timely resolution of pipeline safety cases. PHMSA declines to adopt INGAA's proposal and will continue to render all decisions in hearing cases as set forth in Sec. 190.211. As for INGAA's alternate proposal, under which the parties would be allowed to present an oral argument directly to the Associate Administrator, PHMSA believes the current process already develops a full and complete record that is used by the Presiding Official in reaching an independent recommended decision. The recommended decision summarizes and analyzes the respondent's arguments, and the Associate Administrator uses this recommended decision as the basis for issuing a final order. In PHMSA's view, adding additional oral arguments directly before the Associate Administrator would add little to the parties' previous submissions. PHMSA therefore declines to adopt this proposal. With regard to Sec. 190.211(f), in response to the comment PHMSA is revising the regulation to clarify that the Presi","truncated":true,"body_characters":128016}