# Pipeline Safety: Enhanced Emergency Order Procedures

- **operation:** document
- **citation:** 84 FR 52015
- **title:** Pipeline Safety: Enhanced Emergency Order Procedures
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2019-10-01
- **effective on:** 2019-12-02
- **summary:** On October 14, 2016, PHMSA published an interim final rule (IFR) issuing temporary emergency order procedures and requesting public comment. This final rule adopts, with modifications, that IFR implementing the emergency order authority conferred on the Secretary of Transportation (the Secretary) by the "Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016" (PIPES Act). These regulations establish procedures for the issuance of emergency orders to address an unsafe condition or practice, or a combination of unsafe conditions or practices, that constitute or cause an imminent hazard to public health and safety or the environment. The regulations describe the duration and scope of such orders and provide a mechanism by which pipeline owners and operators subject to, and aggrieved by, emergency orders can seek administrative or judicial review.
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Federal Register, Volume 84 Issue 190 (Tuesday, October 1, 2019) [Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)] [Rules and Regulations] [Pages 52015-52029] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2019-20308] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 190 [Docket No. PHMSA-2016-0091; Amdt. No. 190-21] RIN 2137-AF26 Pipeline Safety: Enhanced Emergency Order Procedures AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: On October 14, 2016, PHMSA published an interim final rule (IFR) issuing temporary emergency order procedures and requesting public comment. This final rule adopts, with modifications, that IFR implementing the emergency order authority conferred on the Secretary of Transportation (the Secretary) by the ``Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016'' (PIPES Act). These regulations establish procedures for the issuance of emergency orders to address an unsafe condition or practice, or a combination of unsafe conditions or practices, that constitute or cause an imminent hazard to public health and safety or the environment. The regulations describe the duration and scope of such orders and provide a mechanism by which pipeline owners and operators subject to, and aggrieved by, emergency orders can seek administrative or judicial review. DATES: This final rule is effective December 2, 2019. FOR FURTHER INFORMATION CONTACT: James M. Pates, Assistant Chief Counsel for Pipeline Safety, PHMSA, by telephone at (202) 366-0331 or by mail at U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Executive Summary A. Purpose of the Regulatory Action Section 16 of the PIPES Act (section 16) adds to 49 U.S.C. 60117(o) by establishing a new emergency order authority for the Secretary \1\ in the area of pipeline safety. In section 16, Congress directed PHMSA to develop procedures for the issuance of emergency orders to address unsafe conditions or practices that constitute or cause an imminent hazard. This new authority augments PHMSA's existing authority (e.g., corrective action orders, safety orders) to address hazardous conditions and pipeline integrity risks by allowing PHMSA to act quickly to address imminent safety hazards that exist across a group of pipeline owners and operators. As required by section 16, on October 14, 2016, PHMSA issued an IFR establishing procedures for the issuance of emergency orders to address unsafe conditions or practices, or a combination of unsafe conditions or practices, that constitute or are causing an imminent hazard. Further, the PIPES Act mandated that PHMSA issue final regulations carrying out section 16 no later than 270 days following enactment of the PIPES Act. --------------------------------------------------------------------------- \1\ The Secretary has delegated the responsibility to exercise the authority vested in chapter 601 of title 49, U.S.C. to the PHMSA Administrator. See 49 CFR 1.97(a). --------------------------------------------------------------------------- [[Page 52016]] B. Summary of the Major Provisions of the Regulatory Action Pursuant to section 16, this final rule amends the Federal pipeline safety regulations by establishing procedures to implement the expanded emergency order enforcement authority set forth in the IFR. These procedures will apply only when PHMSA determines that an unsafe condition or practice constitutes or is causing an imminent hazard. PHMSA may issue an emergency order without advance notice or opportunity for a hearing. Additionally, PHMSA may impose emergency restrictions, prohibitions, or other safety measures on owners and operators of gas or hazardous liquid pipeline facilities, but only to the extent necessary to abate the imminent hazard. Based on comments received from industry and the public, several provisions in the IFR have been modified or clarified by this final rule. C. Cost and Benefit By implementing this statutory mandate, PHMSA will enhance its existing enforcement authority to respond immediately to conditions or practices that exist in the pipeline industry or a subset thereof. This final rule solely affects agency enforcement procedures to implement the emergency order provisions of the law; therefore, this rulemaking results in no additional burden or compliance costs to industry. II. Background A. Protecting Our Infrastructure of Pipelines and Enhancing Safety Act of 2016 On June 22, 2016, the President signed the PIPES Act (Pub. L. 114- 183, 130 Stat. 514), which amended the Pipeline Safety Laws in chapter 601 of title 49, United States Code. Congress enacted section 16 to permit PHMSA to address conditions or practices that extend beyond or affect more than a single pipeline owner or operator, and which must be addressed immediately to protect life, property, or the environment. Section 60117(o) authorizes PHMSA to issue an emergency order if it determines that an unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard. Under this section, an emergency order may impose emergency restrictions, prohibitions, or other safety measures on owners and operators of gas or hazardous liquid pipeline facilities, without prior notice or an opportunity for a hearing, but only to the extent necessary to abate the imminent hazard. This regulatory authority allows PHMSA to impose conditions on a group of pipeline owners and operators, facilities, or systems, in accordance with the statutorily- mandated procedures outlined in the PIPES Act and this final rule. B. Current Authorities: Corrective Action Orders and Safety Orders 1. Corrective Action Orders Section 60112 of title 49 provides for the issuance of a corrective action order (CAO) to the owner or operator of a pipeline facility if the agency finds that operation of a pipeline facility is or would be hazardous to life, property, or the environment. Prior to issuing a CAO, the Associate Administrator for Pipeline Safety (the Associate Administrator) must consider the following factors, if relevant: (a) The characteristics of the pipe and other equipment used in the pipeline facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction or assembly; (b) The nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation; (c) The characteristics of the geographical areas in which the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas, and the population density and population and growth patterns of such areas; (d) Any recommendation of the National Transportation Safety Board (NTSB) issued in conjunction with any investigations conducted by the NTSB; and (e) Such other factors as the Associate Administrator may consider appropriate. After weighing these factors and finding that a particular facility is or would be hazardous to life, property, or the environment, the Associate Administrator may order the suspended or restricted use of a pipeline facility, physical inspection, testing, repair, replacement, or other appropriate action. Furthermore, if the Associate Administrator determines that the failure to issue the order expeditiously would result in the likelihood of serious harm to life, property, or the environment, the CAO may be issued without prior notice and an opportunity for a hearing. In such cases, the affected owner or operator must be provided with the opportunity for a hearing and ``expedited review'' as soon as practicable following issuance of the CAO. Historically, PHMSA has used CAOs to address a single owner, operator, or pipeline facility. 2. Safety Orders Similarly, section 60117 provides for the issuance of a notice of proposed safety order (NOPSO) to the owner or operator of a pipeline facility where the agency finds that a particular pipeline facility has a condition or conditions that pose an integrity risk to public safety, property, or the environment that may not require immediate corrective action but needs to be addressed over time. The NOPSO proposes specific measures that an operator must take to address the identified risk, which may include physical inspections, testing, repairs, or other appropriate actions to remedy the identified risk or condition. A NOPSO addresses pipeline integrity risks that may require the owner or operator to take immediate corrective actions or risks that must be addressed over a longer period. Historically, these orders have likewise been issued to a single owner, operator, or pipeline facility and are not intended to address imminent safety or environmental hazards. C. Hazardous Materials Emergency Order Authority In addition to its authorities granted under chapter 601, title 49 of the United States Code, PHMSA conducts a separate regulatory program governing the transportation of hazardous materials by means other than pipelines (e.g., rail, air). Under the statute governing the safe transportation of hazardous materials, 49 U.S.C. chapter 51, as amended by the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (HMTSSRA; Pub. L. 109-59; August 10, 2005), expanded the Secretary's inspection authority for hazardous materials transportation, as well as investigation and enforcement authority. Prior to the enactment of HMTSSRA, DOT could only obtain relief against a hazardous-materials safety violation posing an imminent hazard through a court order. After finding such a threat, the applicable DOT operating administration (e.g., Federal Railroad Administration, PHMSA) was required to enlist the Department of Justice to file a civil action against the offending party and seek a restraining order or preliminary injunction. As a practical matter, judicial relief could rarely be obtained [[Page 52017]] before the hazardous materials transportation had been completed. On March 2, 2011, PHMSA published a final rule, titled ``Hazardous Materials: Enhanced Enforcement Authority Procedures,'' (76 FR 11570), to remedy this problem. The hazardous materials regulations, codified at 49 CFR 109.17 and 109.19, allow PHMSA to issue emergency orders to abate unsafe conditions or practices posing an imminent hazard related to the transportation of hazardous materials, and include streamlined administrative remedies that materially enhanced PHMSA's ability to prevent the unsafe movement of hazardous materials. Section 16 of the PIPES Act directs the Secretary to adopt a review process for pipeline emergency orders that contains the same procedures as those in 49 CFR 109.19(d) and (g) and that is ``otherwise consistent with the review process developed under [49 CFR 109.19], to the greatest extent practicable and not inconsistent with this section.'' As a result, this final rule is modeled in many respects after the enhanced authority conferred by HMTSSRA and contained in 49 CFR 109.19. D. Need for Enhanced Emergency Order Authority for Pipelines While the CAO has proven to be an effective tool to address a particular pipeline operator's hazardous facility, no enforcement vehicle existed, prior to passage of the PIPES Act, that would allow PHMSA to address immediate safety threats facing the wider pipeline industry. This new enforcement tool enables the PHMSA Administrator (the Administrator) to issue an emergency order prohibiting an unsafe condition or practice and imposing affirmative safety measures when an unsafe condition, practice, or other activity constitutes or is causing an imminent hazard to life, property or the environment. The emergency order authority conferred by the PIPES Act is intended to serve as a flexible enforcement tool that can be used in emergency situations to address time-sensitive safety conditions affecting multiple owners or operators, facilities, or systems that present an imminent hazard. Unlike a CAO or NOPSO issued to a single operator, an emergency order affects multiple or all operators and pipeline systems that share a common characteristic or condition. A variety of circumstances could warrant the issuance of an emergency order, including: (1) Where a natural disaster affects many pipelines in a specific geographic region; (2) where a serious flaw has been discovered in pipe, equipment manufacturing, or supplier materials; and (3) where an accident reveals that a specific industry practice is unsafe and needs immediate or temporary correction. This list is not intended to be exhaustive. PHMSA will examine the specific facts in each situation to determine if an imminent hazard exists and will tailor each emergency order to address the specific imminent hazard under the circumstances presented while observing the statutorily-mandated due process procedures. E. Interim Final Rule On October 14, 2016, PHMSA issued an IFR adopting temporary regulations governing emergency orders. The IFR implemented the authority conferred by the PIPES Act that allowed PHMSA to issue an emergency order without prior notice or an opportunity for a hearing when an unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard. PHMSA simply adopted the statutory definition of ``Imminent hazard'' found in section 16, namely, the existence of a condition relating to one or more pipeline facilities that ``presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment.'' In the IFR, PHMSA followed the statutory language in section 16 to provide that, before issuing an emergency order, the agency must consider its potential impact on the public health and safety, on the national or regional economy, or national security, as well as the ability of owners and operators of pipeline facilities to maintain reliability and continuity of service to customers. As part of this deliberative process, PHMSA shall ``consult, as the [Administrator] determines appropriate, with appropriate Federal agencies, State agencies, and other entities knowledgeable in pipeline safety or operations.'' The IFR also provided that any entity subject to, and aggrieved by, an emergency order would have the right to file a petition for review with PHMSA to determine whether the order should remain in effect, be modified, or be terminated. If the agency does not reach a decision with respect to the petition before the end of a 30-day review period (beginning when the petition is filed), the order will cease to be effective unless the Administrator determines in writing, on or before the last day of the review period, that the imminent hazard still exists. III. Summary and Response to Comments PHMSA received eight comments from pipeline trade associations, pipeline operators, and citizens. List of Commenters: 1. American Fuel & Petrochemical Manufacturers (AFPM) 2. The American Gas Association (AGA) 3. The American Petroleum Institute and the Association of Oil Pipe Lines (API/AOPL) 4. Chaparral Energy, Inc. (Chaparral) 5. GPA Midstream Association (GPA) 6. Interstate Natural Gas Association of America (INGAA) 7. ONEOK Partners, L.P. (ONEOK) 8. Peter Miller General Comments Most of the comments were generally supportive of the IFR. AFPM, AGA, API/AOPL, and INGAA were concerned, however, about the lack of a notice and comment period prior to issuance of the IFR and PHMSA's decision to issue temporary regulations through an IFR. The industry commenters also requested a number of amendments aimed at ensuring various procedural safeguards, including the narrowing of the grounds for issuing emergency orders, guaranteeing the right of every petitioner to secure a formal hearing before an administrative law judge (ALJ), setting more liberal deadlines for filing petitions for reconsideration from the report and recommendation of an ALJ, and requiring personal service of emergency orders. One comment was outside of the scope of the rulemaking because it addressed issues involving pipeline safety generally and did not address the IFR. PHMSA Response PHMSA believes that issuance of the IFR was the appropriate course of action for PHMSA to take, given the explicit direction from Congress that the Secretary issue temporary regulations within 60 days of enactment of the PIPES Act. However, to obtain meaningful input from the public, PHMSA included a 60-day comment period following issuance of the IFR. This allowed PHMSA to comply with the Congressional mandate to move quickly, while also providing the public with an opportunity to comment on the IFR prior to issuance of a final rule. PHMSA has carefully considered each comment and addressed them in this final rule. Where appropriate, PHMSA has modified the emergency order [[Page 52018]] regulations in response to public comments. Summary of Public Comments on Sec. 190.3, Definitions AGA, API/AOPL, INGAA, and ONEOK commented that the definition of ``emergency order'' should be changed to include the limitation contained in section 16 that the emergency restrictions, prohibitions, and safety measures set forth in an order must be imposed ``only to the extent necessary to abate the imminent hazard.'' GPA cited to the statutory definition of ``emergency order'' and stated that it is in agreement with each concern raised by API/AOPL. Chaparral commented that the phrase ``affected entities'' in the definition of ``emergency order'' be changed to ``respondents'' because ``respondent'' is a defined term under Sec. 190.3, whereas there is no definition in either the statute or the pipeline safety regulations for the term ``affected entities.'' It also stated that the term ``respondent'' is used throughout the Pipeline Safety Enforcement and Regulatory Procedures in 49 CFR part 190 and that its use would therefore be more consistent with the terminology used elsewhere in Part 190. Chaparral further suggested that PHMSA add a new definition for the term ``formal hearing,'' to distinguish it from PHMSA's typical informal enforcement hearings.\2\ --------------------------------------------------------------------------- \2\ Chaparral also recommended that PHMSA amend Sec. 190.3 to expressly incorporate the definitions contained in Sec. Sec. 192.3 and 195.2, as applicable, into Part 190. This comment goes beyond the scope of the final rule and therefore is not addressed. --------------------------------------------------------------------------- AGA suggested that PHMSA modify the definition of the term ``imminent hazard.'' The IFR provides that an imminent hazard exists where there is a substantial likelihood that harm ``may occur before the reasonably foreseeable completion date of a formal administrative proceeding begun to lessen the risk'' of such harm. In a footnote, AGA noted that PHMSA had added the word ``administrative'' to the term ``formal proceeding'' in the definition of ``Imminent hazard'' and requested that it be deleted to be consistent with the definition of ``imminent hazard'' in section 16. PHMSA Response PHMSA agrees with AGA, API/AOPL, INGAA, and ONEOK that the final rule should make clear that an emergency order may be issued ``only to the extent necessary to abate the imminent hazard.'' Therefore, the final rule amends Sec. 190.236(a) by adding the commenters' suggested language to limit the agency's authority to make a determination that an imminent hazard exists. Because this limiting language more properly affects the authority of PHMSA to make a finding of an imminent hazard rather than the definition of what constitutes an ``emergency order,'' the definition in Sec. 190.3 has not been changed. PHMSA believes that this change is appropriate to clarify that an emergency order may not be used as a substitute for notice and comment rulemaking. The PIPES Act distinguishes between emergency order authority, which is intended to address an imminent hazard, and rulemaking activity, making it clear that an emergency order may not be construed to ``alter, amend, or limit the Secretary's obligations under, or the applicability of, [the Administrative Procedure Act.]'' However, PHMSA will consider issuing a regulation through notice and comment rulemaking, if appropriate, based on the unique circumstances that may arise while an emergency order is in effect, or if sufficient time has elapsed and the condition causing the determination of the imminent hazard continues to exist (as discussed below in the ``Summary of Public Comments to Adding Sec. 190.236(e), Emergency Orders, Savings and Limitations'' and in ``IV. Section-by-Section Analysis'' for Sec. 190.236). Procedural safeguards also exist to protect the rights of operators to challenge PHMSA's determination or to remove an emergency order when an imminent hazard no longer exists, either generally or as to an operator individually based on unique facts or circumstances. The operator may petition for review of an emergency order with PHMSA, and receive final agency action on the emergency order within 30 days. If an operator receives an adverse determination from PHMSA, the operator may seek judicial review. PHMSA agrees with commenters, for the reasons stated above, that the phrase ``affected entities'' in the definition of ``emergency order'' should be changed to ``owners and operators'' because paragraph (o)(1) of 49 U.S.C. 60117, as amended by the PIPES Act, limits the entities potentially subject to emergency orders to ``owners and operators of gas or hazardous liquid pipeline facilities.'' While Chaparral suggested replacing ``affected entities'' with ``respondents,'' PHMSA thinks the change to ``owners and operators'' is preferable because it is more specific and tracks the language of the PIPES Act. PHMSA also agrees with commenters that it would be helpful to clarify that a ``formal hearing'' is a formal proceeding on the record conducted by an ALJ in accordance with 5 U.S.C. 554 and should be distinguished from PHMSA's informal adjudications. Therefore, PHMSA is amending Sec. 190.3 to add a definition of the term ``formal hearing'' and to use that term generally to refer to administrative hearings held under the final rule. As for AGA's comment that the word ``administrative'' should be deleted from the phrase ``formal administrative proceeding'' in the definition of ``imminent hazard,'' PHMSA agrees and has deleted the word ``administrative'' to clarify that a finding of an imminent hazard must be based on a determination that the harm posed by the hazard may occur before the reasonably foreseeable completion date of a formal proceeding, whatever its form, that is brought to lessen the risk of such harm. Summary of Public Comments on Sec. Sec. 190.5, Service, and 190.236(d), Emergency Orders, Service AFPM, AGA, API/AOPL, and INGAA commented that emergency orders should not be exempt from PHMSA's general service requirements and that the current service provisions of Sec. 190.5 should not be changed. They also suggested that Sec. 190.236(d) be removed, since it is unnecessary if Sec. 190.5 is unchanged. AGA and API/AOPL suggested that in addition to personal service, affected operators should be notified in an email distribution sent to all individuals listed as ``Compliance Officers'' and alternate contacts in PHMSA's Operator Identification Contact Management Section of the PHMSA Portal. PHMSA Response PHMSA agrees with the commenters' suggestion that PHMSA provide personal service of emergency orders to all pipeline operators subject to the orders. Given the importance that operators receive notice of such orders, PHMSA will also provide notice by posting a copy of each order in the Federal Register and on the PHMSA website as soon as practicable upon issuance. The intent is to provide the same type of personal service for emergency orders as PHMSA currently provides for other enforcement actions issued under Part 190, plus notice on the PHMSA website and in the Federal Register. PHMSA is therefore deleting the amendment of Sec. 190.5 and amending Sec. 190.236(d) to provide that PHMSA will provide personal service of emergency orders, pursuant to Sec. 190.5, to pipeline owners and operators subject to the order, plus general notice by posting the orders on the PHMSA [[Page 52019]] website and by publication in the Federal Register. Personal service will be consistent with the provisions of the current Sec. 190.5, which states that PHMSA will effectuate personal service by certified mail, overnight courier, or electronic transmission by facsimile or other electronic means that includes reliable acknowledgement of actual receipt. Since this is the same personal service that is already provided in other enforcement actions, PHMSA believes that the agency can effectively and expeditiously provide personal service of emergency orders to all affected operators. In addition, every pipeline operator is required to file reports annually with the agency, so PHMSA's database is kept current. Because PHMSA has changed the final rule to provide personal service to all affected pipeline owners and operators, as suggested by the commenters, and is also providing general notice on PHMSA's website and in the Federal Register, PHMSA believes there is no need to adopt the additional suggestion from AGA and API/AOPL that PHMSA notify operators by email sent to all individuals listed as ``Compliance Officers'' and alternate contacts in PHMSA's Operator Identification Contact Management Section. Should affected owners and operators wish to share an emergency order, they may always do so. Summary of Public Comments to Sec. 190.236(a), Emergency Orders, Determination of Imminent Hazard Section 16 of the PIPES Act provides that when PHMSA issues an emergency order, the order must contain a written description of ``the violation, condition, or practice that constitutes or is causing the imminent hazard.'' AGA, API/AOPL, and INGAA commented that PHMSA does not have the authority under the PIPES Act to issue an emergency order based on a violation of the Federal pipeline safety laws, or a regulation or order prescribed under them. The commenters stated that they do not believe a violation of a pipeline safety law, or regulation or order thereunder, in and of itself, could be a sufficient basis to issue an emergency order. API/AOPL raised due process concerns if an operator does not have prior notice and an opportunity for a hearing before PHMSA finds that a violation has occurred. PHMSA Response As noted above, the explicit use of the term ``violation'' in section 16 makes clear that a violation of a provision of the Federal pipeline safety laws, or a regulation or order prescribed under those laws, may serve as part of the factual basis for PHMSA determining that a condition or combination of conditions constitutes or is causing an imminent hazard. However, PHMSA does not interpret section 16 to mean that an emergency order would be used either to make an allegation of violation or a finding of violation, since those are addressed through other enforcement mechanisms, primarily notices of probable violation. Instead, PHMSA interprets the use of the term ``violation'' in the final rule to mean that preliminary findings of fact, conditions, potential violations, events, or practices that form the legal basis for determining the existence of an imminent hazard may be included as part of the factual basis for issuing an emergency order. PHMSA does not foresee that the factual statements contained in emergency orders will differ from the ``Preliminary Findings'' currently contained in corrective action orders, notices of proposed corrective action orders, and notices of proposed safety orders that serve as the agency's factual basis for declaring a hazardous condition or integrity threat and proposing or imposing corrective actions that operators need to take to address unsafe conditions. To avoid any implication that emergency orders will be premised on an actual determination or finding of violations of the pipeline safety regulations, PHMSA has revised the introductory language in Sec. 190.236(a) to remove the reference to ``violations'' of Federal pipeline safety laws as stated in the IFR. However, PHMSA is retaining it later in that same paragraph when used to describe the contents of an emergency order. This adheres to the statutory language in section 16 and makes a distinction between the alleged preliminary findings of fact that serve as the legal basis for issuing an order and what the order actually determines or requires. PHMSA emphasizes that this revision does not affect its authority to issue an emergency order where a violation of the pipeline safety regulations may have occurred or to make preliminary findings of fact that describe the conditions giving rise to an imminent hazard.\3\ Potential violations of Federal pipeline safety laws can result in unsafe conditions or practices that are so serious that they can serve to constitute part of the factual basis for issuing an emergency order. It would be unwise and contrary to the language of the statute to suggest that the use of the facts underlying potential violations is beyond PHMSA's authority. PHMSA also emphasizes that issuance of an emergency order does not preclude the agency from pursuing a violation through other means, including a notice of probable violation, separate from the emergency order process. --------------------------------------------------------------------------- \3\ This has traditionally been PHMSA's practice in issuing corrective action orders (CAOs), where the agency recites preliminary findings that describe what is currently known about the facts and circumstances surrounding an accident and that are subject to change as the accident investigation continues. --------------------------------------------------------------------------- PHMSA is also correcting two typographical errors contained in this section. Neither change is substantive. Summary of Public Comments to Sec. 190.236(b), Emergency Orders, Consultation Requirement AFPM commented that the IFR language does not include details concerning PHMSA's contemplated approach for carrying out the requirement in section 16 that PHMSA consult with appropriate Federal agencies, State authorities, and other entities knowledgeable in pipeline safety or operations before deciding whether to issue an emergency order. It requests that PHMSA provide clarification on its intended approach for such ``pre-order'' consultations, ``including categories of experts within State and Federal authorities [PHMSA] would expect to engage in pre-order consultation and consideration.'' INGAA requested clarification that section 16 actually requires PHMSA to consult with appropriate Federal and state agencies and ``other entities knowledgeable in pipeline safety or operations'' and that PHMSA's discretion was limited ``only as to what agencies are consulted and to what extent those agencies are consulted,'' not whether to consult at all. INGAA stated that the PIPES Act explicitly mandates that such consultations take place and further suggested that ``it would be appropriate, if not imperative, for the Administrator to consult with certain agencies in almost every conceivable situation.'' For example, INGAA suggested that for any emergency order issued to a Federal Energy Regulatory Commission (FERC)-regulated pipeline, FERC should be consulted at a minimum for potential impacts on energy reliability. Additionally, INGAA proposed that the Department of Energy be an appropriate consulting agency in some cases due to its overarching interest in energy policy and electric reliability. PHMSA Response PHMSA declines to adopt AFPM's suggestion that the agency provide [[Page 52020]] greater detail as to how and when PHMSA will engage in consultations with various agencies and stakeholders before issuing an emergency order. PHMSA believes that the statute clearly provides that PHMSA should engage in consultations with knowledgeable entities, including State and Federal agencies, before issuing an order, except that PHMSA has been granted the discretion to determine when consultations are ``appropriate,'' including the exigent circumstances upon which the emergency order is based. PHMSA believes it would be inefficient, inflexible, and contrary to the statutory language to identify specific procedures or entities that must be consulted in every instance, given the unique circumstances under which PHMSA is likely to consider issuance of an emergency order. As suggested by commenters, PHMSA is amending the title to the subsection to clarify that it is not delineating a formal consultation process. Summary of Public Comments To Adding Sec. 190.236(e), Emergency Orders, Savings and Limitations INGAA commented that PHMSA ``must'' add a paragraph (e) to Sec. 190.236 to include a Savings and Limitations Clause, since a similar provision is contained in section 16. INGAA provided proposed language that followed the statutory language, stating that an emergency order under this section may not alter, amend, or limit the Secretary's obligations or provide authority to amend the CFR. PHMSA Response PHMSA rejects this suggestion as being unnecessary. The limitations and savings clause contained in section 16 is self-executing and does not require duplicate publication in the code of Federal regulations to be effective. Therefore, PHMSA is not adding a section to include a limitations and savings clause. However, PHMSA is adding a new paragraph (e) to Sec. 190.236, which is intended to address a different concern. The new paragraph (e) states that if an emergency order remains in effect for more than 365 days, PHMSA will make an assessment regarding whether the imminent hazard underlying the emergency order continues to exist. PHMSA did not receive any public comments suggesting this amendment, but it has decided to add the paragraph as an additional procedural protection to the petition process in Sec. 190.237. Under this new provision, if PHMSA determines the imminent hazard does not continue to exist, PHMSA will rescind the order by notifing the operator in accordance with the procedures in Sec. 190.236(d). If PHMSA determines the imminent hazard underlying the emergency order does continue to exist, PHMSA will initiate a rulemaking. Initating a rulemaking means that PHMSA will begin developing a rulemaking that will propose incorporating the actions mandated in the emergency order in the pipeline safety regulations. The proposed rulemaking will be published in the Federal Register and will provide the public an opportunity for notice and comment. Summary of Public Comments to Sec. 190.237, Petitions for Review AFPM, INGAA, and ONEOK suggested that PHMSA include a provision allowing petitioners to modify or amend petitions for review after they have been filed. ONEOK and INGAA proposed that such amendments be permitted ``within the 30-day deadline for a final agency decision should new information become available that materially affects the review proceeding.'' INGAA stated that such an opportunity to amend a petition for review should not affect the 30-day deadline for reaching a final agency decision. API/AOPL commented that PHMSA should clarify that if a petition for review is filed, PHMSA has the burden of proving the reasonableness of the order. PHMSA Response PHMSA accepts the commenters' suggestion to add language clarifying that petitions for review can be amended to provide new information materially affecting the review proceeding, provided such modifications or amendments are timely submitted. The determination whether to accept a modification or amendment will be made by the Associate Administrator where no formal hearing has been requested. In cases that have been referred to an ALJ for a formal hearing, the ALJ will determine whether to accept the new materials. In response to API's comments about PHMSA's burden of proving the reasonableness of an emergency order, PHMSA has added a paragraph to clarify that the agency bears the burden of proving, by a preponderance of the evidence, that all the elements necessary to sustain an emergency order are present in a particular case, just as it does in other enforcement proceedings. However, a party asserting an affirmative defense bears the burden of proving the affirmative defense by a preponderance of the evidence. Accordingly, in this final rule, PHMSA is adding paragraph (g) to Sec. 190.237 to explicitly define the burden of proof in emergency order cases. Current paragraphs (f) through (k) are redesignated as paragraphs (h) through (m). Summary of Public Comments to Sec. 190.237(a)(2), Petitions for Review, Requirements Chaparral commented that Sec. 190.237(a)(2) in the IFR requires a petition for review to specifically identify which portions of the emergency order the petition seeks to either ``amend or rescind.'' It proposed that this language be modified to match the statutory language, which states that PHMSA must provide an opportunity for an owner or operator to show why an emergency order should be ``modified'' or ``terminated.'' PHMSA Response PHMSA adopts this suggestion and has revised Sec. 190.237(a)(2) to use the phrase ``modified or terminated'' to be consistent with the statutory language. Summary of Public Comments to Sec. Sec. 190.237(a)(3) and 190.237(c)(1), Petitions for Review, Right to Formal Hearing AGA, AFPM, API/AOPL, and INGAA commented that PHMSA should remove the provision requiring that each petition containing a request for a formal hearing must state ``the material facts in dispute giving rise to the request for a hearing,'' as well as the provision providing the Associate Administrator with the discretion to deny a formal hearing request if he finds that the petition for review fails to state material facts in dispute. INGAA expressed concern that denying a formal hearing could impinge on an operator's ability to develop an evidentiary record before an independent administrative law judge. This was of particular concern because an emergency order could potentially have far-reaching consequences on energy reliability, continuity of service, and the economy as a whole. The commenters stated that Sec. 190.237(c)(1) should be modified to make clear that ``the Associate Administrator does not have the discretion to unilaterally deny an affected entity the opportunity to pursue a formal hearing.'' AFPM concurred that a petition should not be denied based simply on a failure to state materials facts because if PHMSA were to issue an emergency order in the aftermath of an accident, the facts underlying the incident would [[Page 52021]] likely be unknown, or only partially known, even by the operator, during an emergency. AFPM stated that petitioners subject to an emergency order who lack access to all of the underlying facts would need to have the opportunity of a formal hearing to enga
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