Pipeline Safety Rulemaking Procedures

Passage 1[Federal Register Volume 61, Number 189 (Friday, September 27, 1996)] [Rules and Regulations] [Pages 50908-50911] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-24399] _______________________________________________________________________ _______________________________________________________________________ Research and Special Programs Administration _______________________________________________________________________ Pipeline Safety Rulemaking Procedures; Final Rule Federal Register / Vol. 61, No. 189 / Friday, September 27, 1996 / Rules and Regulations Research and Special Programs Administration [Docket RSP-2; Admt. Nos. 106-12, 190-1] RIN 2137-AC94 AGENCY: Research and Special Programs Administration (RSPA), DOT. ----------------------------------------------------------------------- SUMMARY: RSPA is replicating in 49 CFR Part 190 its rulemaking procedures presently found in 49 CFR Part 106. This will enable persons in the pipeline industry to obtain a single volume of the Code of Federal Regulations that contains both the pipeline safety program regulations and the pipeline rulemaking procedures. The intended effect of this action is to reduce the pipeline industry's cost of purchasing regulations and to increase user convenience by placing the rulemaking procedures in the same volume with program procedures. RSPA has taken these actions in response to President Clinton's regulatory reinvention initiative. FOR FURTHER INFORMATION CONTACT: Paul Sanchez, Attorney, Office of the Chief Counsel, RSPA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001; Telephone (202) 366-4400; or online at [email protected].#

Passage 2On March 4, 1995, President Clinton issued a memorandum to heads of departments and agencies calling for a review of all agency regulations to eliminate or revise those regulations that are outdated or in need of reform. In response to the President's directive, RSPA extensively reviewed its Hazardous Materials Regulations (HMR; 49 CFR Parts 171- 180), Pipeline Safety Regulations (49 CFR Parts 190-199) and its procedural rules in 49 CFR Parts 106, 107 and 110. In its review, RSPA determined that it could eliminate sufficient HMR pages to facilitate the future publication of separate, stand-alone Code of Federal Regulation volumes for the HMR and the pipeline safety regulations. To do this, it is necessary to reproduce in the pipeline safety regulations the rulemaking procedures currently in Part 106. This action will enable persons in the pipeline industry to obtain a single volume of the CFR that contains both the pipeline safety regulations and the applicable rulemaking procedures. This rulemaking replicates in Part 190 the rulemaking procedures existing in Part 106, including those changes made in the final rule published June 14, 1996 (FR 30175). Since this rulemaking does not impose new requirements, notice and public procedure are unnecessary. For the same reason, there is good cause to make these amendments effective without the customary 30-day delay following publication. This will allow the changes to appear in the next revision of 49 CFR. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. The rule is not considered significant under the regulatory policies and procedures of the Department of Transportation (44 FR 11034). The economic impact of this rule is minimal to the extent that the preparation of a regulatory evaluation is not warranted. This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12612 (``Federalism''), and RSPA has determined that preparation of a federalism assessment is not warranted.#

Passage 3I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule does not impose any new requirements on persons subject to the HMR or the Pipeline Safety Regulations. This final rule does not impose any new information collection requirements. A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. Administrative practice and procedure, Hazardous materials transportation, Oil. Administrative practice and procedure, Pipeline safety. In consideration of the foregoing, 49 CFR chapter I is amended as follows: 1. The heading of subchapter A of Chapter I is revised to read as follows: Subchapter A--Hazardous Materials and Oil Transportation 2. The authority citation for part 106 is revised to read as follows: Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53. 3. In Sec. 106.3, paragraph (b) is removed and paragraph (c) is redesignated as paragraph (b). PART 190 --PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES 4. The heading of part 190 is revised to read as set forth above: 5. The authority citation for Part 190 is revised to read as follows: Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 60101 et seq.; 49 CFR 1.53. 6. Subpart C is added to part 190 to read as follows: Subpart C--Procedures for Adoption of Rules Sec. 190.301 Scope. 190.303 Delegations. 190.305 Regulatory dockets. 190.307 Records. 190.309 Where to file petitions. 190.311 General. 190.313 Initiation of rulemaking. 190.315 Contents of notices of proposed rulemaking. 190.317 Participation by interested persons. 190.319 Petitions for extension of time to comment. 190.321 Contents of written comments. 190.323 Consideration of comments received. 190.325 Additional rulemaking proceedings. 190.327 Hearings. 190.329 Adoption of final rules. 190.331 Petitions for rulemaking. 190.333 Processing of petition. 190.335 Petitions for reconsideration. 190.337 Proceedings on petitions for reconsideration. 190.338 Appeals. 190.339 Direct final rulemaking. Subpart C--Procedures for Adoption of Rules#

Passage 4This subpart prescribes general rulemaking procedures for the issue, amendment, and repeal of Pipeline Safety Program regulations of the Research and Special Programs Administration of the Department of Transportation. For the purposes of this subpart, Administrator means the Administrator, Research and Special Programs Administration, or his or her delegate. (a) Information and data considered relevant by the Administrator relating to rulemaking actions, including notices of proposed rulemaking; comments received in response to notices; petitions for rulemaking and reconsideration; denials of petitions for rulemaking and reconsideration; records of additional rulemaking proceedings under Sec. 190.325; and final regulations are maintained by the Research and Special Programs Administration at 400 7th Street, SW, Washington, D.C. 20590-0001. (b) Any person may examine any docketed material at the offices of the Research and Special Programs Administration at any time during regular business hours after the docket is established, except material which the Administrator determines should be withheld from public disclosure under applicable provisions of any statute administered by the Administrator and section 552(b) of Title 5, United States Code, and may obtain a copy of it upon payment of a fee. Records of the Research and Special Programs Administration relating to rulemaking proceedings are available for inspection as provided in section 552(b) of title 5, United States Code, and part 7 of the Regulations of the Office of the Secretary of Transportation (part 7 of this title). Petitions for extension of time to comment submitted under Sec. 190.319, petitions for hearings submitted under Sec. 190.327, petitions for rulemaking submitted under Sec. 190.331, and petitions for reconsideration submitted under Sec. 190.335 must be submitted to: Administrator, Research and Special Programs Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, D.C. 20590-0001. Unless the Administrator, for good cause, finds that notice is impracticable, unnecessary, or contrary to the public interest, and incorporates that finding and a brief statement of the reasons for it in the rule, a notice of proposed rulemaking is issued and interested persons are invited to participate in the rulemaking proceedings with respect to each substantive rule.#

Passage 5The Administrator initiates rulemaking on his or her own motion; however, in so doing, the Administrator may use discretion to consider the recommendations of other agencies of the United States or of other interested persons including those of any technical advisory body established by statute for that purpose. Sec. 190.315 Contents of notices of proposed rulemaking. (a) Each notice of proposed rulemaking is published in the Federal Register, unless all persons subject to it are named and are personally served with a copy of it. (b) Each notice, whether published in the Federal Register or personally served, includes: (1) A statement of the time, place, and nature of the proposed rulemaking proceeding; (2) A reference to the authority under which it is issued; (3) A description of the subjects and issues involved or the substance and terms of the proposed regulation; (4) A statement of the time within which written comments must be submitted; and (5) A statement of how and to what extent interested persons may participate in the proceeding. Sec. 190.317 Participation by interested persons. (a) Any interested person may participate in rulemaking proceedings by submitting comments in writing containing information, views or arguments in accordance with instructions for participation in the rulemaking document. (b) The Administrator may invite any interested person to participate in the rulemaking proceedings described in Sec. 190.325. (c) For the purposes of this subpart, an interested person includes any Federal or State government agency or any political subdivision of a State. Sec. 190.319 Petitions for extension of time to comment. A petition for extension of the time to submit comments must be received not later than 10 days before expiration of the time stated in the notice. It is requested, but not required, that three copies be submitted. The filing of the petition does not automatically extend the time for petitioner's comments. A petition is granted only if the petitioner shows good cause for the extension, and if the extension is consistent with the public interest. If an extension is granted, it is granted to all persons, and it is published in the Federal Register. Sec. 190.321 Contents of written comments.#

Passage 6All written comments must be in English. It is requested, but not required, that five copies be submitted. Any interested person should submit as part of written comments all material considered relevant to any statement of fact. Incorporation of material by reference should be avoided; however, where necessary, such incorporated material shall be identified by document title and page. Sec. 190.323 Consideration of comments received. All timely comments and the recommendations of any technical advisory body established by statute for the purpose of reviewing the proposed rule concerned are considered before final action is taken on a rulemaking proposal. Late filed comments are considered so far as practicable. Sec. 190.325 Additional rulemaking proceedings. The Administrator may initiate any further rulemaking proceedings that the Administrator finds necessary or desirable. For example, interested persons may be invited to make oral arguments, to participate in conferences between the Administrator or the Administrator's representative and interested persons, at which minutes of the conference are kept, to appear at informal hearings presided over by officials designated by the Administrator at which a transcript of minutes are kept, or participate in any other proceeding to assure informed administrative action and to protect the public interest. (a) If a notice of proposed rulemaking does not provide for a hearing, any interested person may petition the Administrator for an informal hearing. The petition must be received by the Administrator not later than 20 days before expiration of the time stated in the notice. The filing of the petition#

Passage 7does not automatically result in the scheduling of a hearing. A petition is granted only if the petitioner shows good cause for a hearing. If a petition for a hearing is granted, notice of the hearing is published in the Federal Register. (b) Sections 556 and 557 of title 5, United States Code, do not apply to hearings held under this part. Unless otherwise specified, hearings held under this part are informal, nonadversary fact-finding proceedings, at which there are no formal pleadings or adverse parties. Any regulation issued in a case in which an informal hearing is held is not necessarily based exclusively on the record of the hearing. (c) The Administrator designates a representative to conduct any hearing held under this subpart. The Chief Counsel designates a member of his or her staff to serve as legal officer at the hearing. Final rules are prepared by representatives of the Office of Pipeline Safety and the Office of the Chief Counsel. The regulation is then submitted to the Administrator for consideration. If the Administrator adopts the regulation, it is published in the Federal Register, unless all persons subject to it are named and are personally served with a copy of it.#

Passage 8(a) Any interested person may petition the Associate Administrator for Pipeline Safety to establish, amend, or repeal a substantive regulation, or may petition the Chief Counsel to establish, amend, or repeal a procedural regulation. (b) Each petition filed under this section must-- (1) Summarize the proposed action and explain its purpose; (2) State the text of the proposed rule or amendment, or specify the rule proposed to be repealed; (3) Explain the petitioner's interest in the proposed action and the interest of any party the petitioner represents; and (4) Provide information and arguments that support the proposed action, including relevant technical, scientific or other data as available to the petitioner, and any specific known cases that illustrate the need for the proposed action. (c) If the potential impact of the proposed action is substantial, and information and data related to that impact are available to the petitioner, the Associate Administrator or the Chief Counsel may request the petitioner to provide-- (1) The costs and benefits to society and identifiable groups within society, quantifiable and otherwise; (2) The direct effects (including preemption effects) of the proposed action on States, on the relationship between the Federal Government and the States, and on the distribution of power and responsibilities among the various levels of government; (3) The regulatory burden on small businesses, small organizations and small governmental jurisdictions; (4) The recordkeeping and reporting requirements and to whom they would apply; and (5) Impacts on the quality of the natural and social environments. (d) The Associate Administrator or Chief Counsel may return a petition that does not comply with the requirements of this section, accompanied by a written statement indicating the deficiencies in the petition.#

Passage 9(a) General. Unless the Associate Administrator or the Chief Counsel otherwise specifies, no public hearing, argument, or other proceeding is held directly on a petition before its disposition under this section. (b) Grants. If the Associate Administrator or the Chief Counsel determines that the petition contains adequate justification, he or she initiates rulemaking action under this subpart. (c) Denials. If the Associate Administrator or the Chief Counsel determines that the petition does not justify rulemaking, the petition is denied. (d) Notification. The Associate Administrator or the Chief Counsel will notify a petitioner, in writing, of the decision to grant or deny a petition for rulemaking. Sec. 190.335 Petitions for reconsideration. (a) Except as provided in Sec. 190.339(d), any interested person may petition the Associate Administrator for reconsideration of any regulation issued under this subpart, or may petition the Chief Counsel for reconsideration of any procedural regulation issued under this subpart and contained in this subpart. It is requested, but not required, that three copies be submitted. The petition must be received not later than 30 days after publication of the rule in the Federal Register. Petitions filed after that time will be considered as petitions filed under Sec. 190.331. The petition must contain a brief statement of the complaint and an explanation as to why compliance with the rule is not practicable, is unreasonable, or is not in the public interest. (b) If the petitioner requests the consideration of additional facts, the petitioner must state the reason they were not presented to the Associate Administrator or the Chief Counsel within the prescribed time. (c) The Associate Administrator or the Chief Counsel does not consider repetitious petitions. (d) Unless the Associate Administrator or the Chief Counsel otherwise provides, the filing of a petition under this section does not stay the effectiveness of the rule. Sec. 190.337 Proceedings on petitions for reconsideration.#

Passage 10(a) The Associate Administrator or the Chief Counsel may grant or deny, in whole or in part, any petition for reconsideration without further proceedings, except where a grant of the petition would result in issuance of a new final rule. In the event that the Associate Administrator or the Chief Counsel determines to reconsider any regulation, a final decision on reconsideration may be issued without further proceedings, or an opportunity to submit comment or information and data as deemed appropriate, may be provided. Whenever the Associate Administrator or the Chief Counsel determines that a petition should be granted or denied, the Office of the Chief Counsel prepares a notice of the grant or denial of a petition for reconsideration, for issuance to the petitioner, and the Associate Administrator or the Chief Counsel issues it to the petitioner. The Associate Administrator or the Chief Counsel may consolidate petitions relating to the same rules. (b) It is the policy of the Associate Administrator or the Chief Counsel to issue notice of the action taken on a petition for reconsideration within 90 days after the date on which the regulation in question is published in the Federal Register, unless it is found impracticable to take action within that time. In cases where it is so found and the delay beyond that period is expected to be substantial, notice of that fact and the date by which it is expected that action will be taken is issued to the petitioner and published in the Federal Register. (a) Any interested person may appeal a denial of the Associate Administrator or the Chief Counsel, issued under Sec. 190.333 or Sec. 190.337, to the Administrator. (b) An appeal must be received within 20 days of service of written notice to petitioner of the Associate Administrator's or the Chief Counsel's decision, or within 20 days from the date of publication of the decision in the Federal Register, and should set forth the contested aspects of the decision as well as any new arguments or information. (c) It is requested, but not required, that three copies of the appeal be submitted to the Administrator. (d) Unless the Administrator otherwise provides, the filing of an appeal under this section does not stay the effectiveness of any rule.#

Passage 11(a) Where practicable, the Administrator will use direct final rulemaking to issue the following types of rules: (1) Minor, substantive changes to regulations; (2) Incorporation by reference of the latest edition of technical or industry standards; (3) Extensions of compliance dates; and (4) Other noncontroversial rules where the Administrator determines that use of direct final rulemaking is in the public interest, and that a regulation is unlikely to result in adverse comment. (b) The direct final rule will state an effective date. The direct final rule will also state that unless an adverse comment or notice of intent to file an adverse comment is received within the specified comment period, generally 60 days after publication of the direct final rule in the Federal Register, the Administrator will issue a confirmation document, generally within 15 days after the close of the comment period, advising the public that the direct final rule will either become effective on the date stated in the direct final rule or at least 30 days after the publication date of the confirmation document, whichever is later. (c) For purposes of this section, an adverse comment is one which explains why the rule would be inappropriate, including a challenge to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. Comments that are frivolous or insubstantial will not be considered adverse under this procedure. A comment recommending a rule change in addition to the rule will not be considered an adverse comment, unless the commenter states why the rule would be ineffective without the additional change. (d) Only parties who filed comments to a direct final rule issued under this section may petition under Sec. 190.335 for reconsideration of that direct final rule. (e) If an adverse comment or notice of intent to file an adverse comment is received, a timely document will be published in the Federal Register advising the public and withdrawing the direct final rule in whole or in part. The Administrator may then incorporate the adverse comment into a subsequent direct final rule or may publish a notice of proposed rulemaking. A notice of proposed rulemaking will provide an opportunity for public comment, generally a minimum of 60 days, and will be processed in accordance with Secs. 190.311-190.329.#

Passage 12Issued in Washington, DC, on September 18, 1996, under the authority delegated in 49 CFR part 1. Kelley S. Coyner, Deputy Administrator. [FR Doc. 96-24399 Filed 9-26-96; 8:45 am] BILLING CODE 4910-60-P#