{"operation":"document","citation":"PHMSA Guidance, Revised Procedures for Determining the Contents of the Case File in Pipeline Safety Enforcement Proceedings","title":"Revised Procedures for Determining the Contents of the Case File in Pipeline Safety Enforcement Proceedings","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2025-05-29","effective_on":"2025-05-29","summary":"Revised Procedures for Determining the Contents of the Case File in Pipeline Safety Enforcement Proceedings Document PHMSA Chief Counsel Memo - Revised Procedures for Determining the Contents of the Case File in Pipeline Safety Enforcement Proceedings.pdf (255.1 KB) The document provides an overview of PHMSA's revised procedures for determining agency records that should be included in the case file for a pipeline sa","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-guidance-revised-procedures-determining-contents-case-file-pipeline-22d20d6f.json","markdown":"https://regulus.evalyn.ai/document/phmsa-guidance-revised-procedures-determining-contents-case-file-pipeline-22d20d6f.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-guidance-revised-procedures-determining-contents-case-file-pipeline-22d20d6f","source_url":"https://www.phmsa.dot.gov/regulatory-compliance/phmsa-guidance/revised-procedures-determining-contents-case-file-pipeline","body":"Revised Procedures for Determining the Contents of the Case File in Pipeline Safety Enforcement Proceedings\n\nDocument\n\n PHMSA Chief Counsel Memo - Revised Procedures for Determining the Contents of the Case File in Pipeline Safety Enforcement Proceedings.pdf (255.1 KB)\n\n        The document provides an overview of PHMSA's revised procedures for determining agency records that should be included in the case file for a pipeline safety enforcement proceeding.\n\nSee the policy memo for full details.\n\n          Issued Date: Thursday, May 29, 2025\n\n<<<PAGE 1>>>\n\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nMay 29, 2025\nFrom: Keith J. Coyle, Chief Counsel, PHMSA\nTo: Linda Daugherty, Acting Associate Administrator for Pipeline Safety,\nPHMSA\nSubject: Revised Procedures for Determining the Contents of the Case File in\nPipeline Safety Enforcement Proceedings1\nSUMMARY\nThe Office of the Chief Counsel (PHC) is advising the Office of Pipeline Safety (OPS) to revise\nits procedures for determining the agency records that should be included in the case file for a\npipeline safety enforcement proceeding. Under the current procedures, OPS’s general practice is\nto include only the agency records listed in 49 CFR § 190.209(b); i.e., the OPS notice or order that\ninitiates the proceeding; a report that OPS prepares in some cases to support the notice or order;\nany additional materials that OPS submits in cases involving an informal hearing; and the OPS\nRegional Director’s evaluation of the materials submitted by the respondent and recommendation\nfor final action.\nWhile these materials provide the respondent with a considerable amount of evidence and other\ninformation, Congress enacted a statute after the adoption of 49 CFR § 190.209 which “require[s]\nthat the case file in an enforcement proceeding include all agency records pertinent to the matters\nof fact and law asserted.”2 The Acting General Counsel of the Department of Transportation\n(DOT) also recently issued a memorandum establishing new procedural requirements for DOT\nenforcement actions, including an obligation to affirmatively disclose certain types of evidence\nconsistent with the U.S. Supreme Court’s ruling in Brady v. Maryland, 373 U.S. 83 (1963).3\n1 This memorandum is not intended to, does not, and may not be relied upon to create any right or benefit, substantive\nor procedural, enforceable at law or equity by any party against the United States, its departments, agencies, or entities,\nits officers, employees, or agents, or any other person.\n2 49 U.S.C. § 60117(b)(1)(C).\n3 See OFFICE OF THE GEN. COUNSEL, U.S. DEP’T OF TRANSP., MEMORANDUM TO SECRETARIAL OFFICERS AND\nHEADS OF OPERATING ADMINISTRATIONS: PROCEDURAL REQUIREMENTS FOR DOT ENFORCEMENT ACTIONS 4–11\n(Mar. 11, 2025), https://www.transportation.gov/administrations/office-general-counsel/general-\ncounsel%E2%80%99s-enforcement-memorandum (DOT Enforcement Memo).\n\n<<<PAGE 2>>>\n\n2\nTo ensure that the respondent is receiving all of the agency records required under the Pipeline\nSafety Act and the DOT General Counsel’s memorandum, PHC is advising OPS to develop a new\nprocedure for determining the contents of the case file in pipeline safety enforcement proceedings.\nIn developing that new procedure, PHC is advising OPS to consider Congress’ statutory directive\nthat the case file include all pertinent agency records,4 as well as the Acting General Counsel’s\napplication of the Brady rule’s affirmative disclosure regime. PHC is also advising OPS to\nconsider the other procedural protections afforded to the respondent in determining the agency\nrecords that should be included in the case file, particularly in cases where an informal hearing is\nrequested before a Presiding Official.\nPHC is advising OPS to apply this new procedure in all cases that are currently pending before\nPHMSA and in all future pipeline safety enforcement proceedings. PHC is not advising OPS to\napply the new procedure retroactively to prior cases that were already the subject of a final\nadministrative action. Nor is PHC advising OPS that its prior procedure violated any law, statute,\nor regulation.\nBACKGROUND\nOPS is the entity within PHMSA that conducts inspections and investigations and initiates\nenforcement actions for probable violations of the Pipeline Safety Act,5 Federal Pipeline Safety\nRegulations,6 and orders issued pursuant to the authority provided thereunder. OPS must comply\nwith certain procedural requirements in performing these functions, and the person who is the\nsubject of the OPS inspection or investigation, or the respondent in an enforcement action, must\nbe afforded certain procedural protections.7 One of those procedural protections concerns the\ncontents of the case file in an enforcement proceeding.8\nIn 1980, the Research and Special Programs Administration, one of PHMSA’s predecessor\nagencies, issued a final rule creating new procedures for enforcement actions initiated under the\nPipeline Safety Act.\n9 That final rule prescribed the contents of the case file used to decide\nenforcement actions involving compliance orders and the assessment of civil penalties, requiring\nthe following materials:\n(1) The inspection reports and any other evidence of alleged violations;\n(2) A copy of the notice of probable violation . . .;\n4 See 49 U.S.C. § 60117(b)(1)(C).\n5 See generally 49 U.S.C. §§ 60101–60143.\n6 See generally 49 CFR Parts 190–199.\n7 49 U.S.C. § 60117(b)(1); 49 CFR Part 190, Subpart B; DOT Enforcement Memo at 4–11; see also Goldberg v.\nKelly, 397 U.S. 254, 266–71 (1970); Richardson v. Perales, 402 U.S. 389, 402–10 (1971); Mathews v. Eldridge, 424\nU.S. 319, 332–34, (1976); Brock v. Roadway Exp., Inc., 481 U.S. 252, 261 (1987).\n8 49 U.S.C. § 60117(b)(1)(C); 49 CFR § 190.209.\n9 See Pipeline Safety Enforcement Procedures, 45 Fed. Reg. 20,412, 20,415 (Mar. 27, 1980) (codifying requirements\nin 49 CFR § 190.213 for issuing final orders).\n\n<<<PAGE 3>>>\n\n3\n(3) Material submitted by the respondent . . . in response to the notice of probable\nviolation;\n(4) The Region Chief’s evaluation of response material submitted by the respondent\nand his recommendation for final action . . .; and\n(5) In cases involving a . . . hearing, any material submitted during and after the\nhearing and the presiding official’s recommendation for final action . . .\n10\nIn 2013, PHMSA issued a final rule amending the procedural regulations for pipeline safety\nenforcement proceedings.\n11 The 2013 final rule included a new regulation applying the case file\nrequirements to several additional types of enforcement actions, including proceedings involving\nnotices of amendment, corrective action orders, and safety orders, but otherwise retained the basic\nconcepts established in the 1980 regulation.12 The 2013 regulation also provided that the case file\nmust be made available to the respondent.\nAs currently codified, the regulation adopted in the 2013 final rule states:\n(a) The case file, as defined in this section, is available to the respondent in all\nenforcement proceedings conducted under this subpart.\n(b) The case file of an enforcement proceeding consists of the following:\n(1) In cases commenced under § 190.206, the notice of amendment and the relevant\nprocedures;\n(2) In cases commenced under § 190.207, the notice of probable violation and the\nviolation report;\n(3) In cases commenced under § 190.233, the corrective action order or notice of\nproposed corrective action order and the data report, if one is prepared;\n(4) In cases commenced under § 190.239, the notice of proposed safety order;\n(5) Any documents and other material submitted by the respondent in response to\nthe enforcement action;\n(6) In cases involving a hearing, any material submitted during and after the hearing\nas set forth in § 190.211; and\n(7) The Regional Director’s written evaluation of response material submitted by\nthe respondent and recommendation for final action, if one is prepared.13\nCongress further addressed the contents of the case file in pipeline safety enforcement proceedings\nas part of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2020 (2020\nPIPES Act).\n14 The statute, which is currently codified at 49 U.S.C. § 60117(b)(1)(C), states that\n“[i]n implementing enforcement procedures under this chapter and [P]art 190 of [T]itle 49, Code\n10 45 Fed. Reg. at 20,415. The Region Chief is now known as the Region Director.\n11 Pipeline Safety: Administrative Procedures; Updates and Technical Corrections, 78 Fed. Reg. 58,897, 58,901\n(Sept. 25, 2013).\n12 78 Fed. Reg. at 58,901.\n13 49 CFR § 190.209.\n14 See Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2020, Consolidated Appropriations\nAct, 2021, Division R, Pub. L. No. 116-260, § 108(a)(2), 134 Stat. 1181, 2221 (2020 PIPES Act).\n\n<<<PAGE 4>>>\n\n4\nof Federal Regulations (or successor regulations), the Secretary shall . . . require that the case file\nin an enforcement proceeding include all agency records pertinent to the matters of fact and law\nasserted.”15\nFinally, in March 2025, the Acting General Counsel issued a memorandum establishing additional\nprocedural requirements for DOT enforcement actions. In that memo, the Acting General Counsel\nstated:\nIt is the Department’s policy that each responsible [Operating Administration] or\ncomponent of [the Office of the Secretary of Transportation] will voluntarily follow\nin its civil enforcement actions the principle articulated in Brady v. Maryland, in\nwhich the Supreme Court held that the Due Process Clause of the Fifth Amendment\nrequires disclosure of exculpatory evidence “material to guilt or punishment”\nknown to the government but unknown to the defendant in criminal cases.\nAdopting the “Brady rule” and making affirmative disclosures of exculpatory\nevidence in all enforcement actions will contribute to the Department’s goal of open\nand fair investigations and administrative enforcement proceedings. This policy\nrequires the agency’s adversarial personnel to disclose materially exculpatory\nevidence in the agency’s possession to the representatives of the regulated entity\nwhose conduct is the subject of the enforcement action. These affirmative\ndisclosures should include any material evidence known to the Department’s\nadversarial personnel that may be favorable to the regulated entity in the\nenforcement action-including evidence that tends to negate or diminish the party’s\nresponsibility for a violation or that could be relied upon to reduce the potential fine\nor other penalties. The regulated entity need not request such favorable\ninformation; it should be disclosed as a matter of course.16\nConsistent with the Brady rule, the Acting General Counsel further stated that in DOT enforcement\nactions involving the assessment of civil penalties, “the agency shall voluntarily share penalty\ncalculation worksheets, manuals, charts, or other appropriate materials that sheds light on the way\npenalties are calculated to ensure fairness in the process and to encourage a negotiated resolution\nwhere possible.”17\nANALYSIS\nOPS’s historical practice has been to include only the materials listed in 49 CFR § 190.209(b) in\nthe case file for a pipeline safety enforcement proceeding. Those materials include certain agency\nrecords that must be made available to the respondent at the outset, i.e., the notice or order that\nOPS issued to initiate the proceeding and, in some cases, an OPS violation report or data report.\n18\nAdditional materials submitted by the respondent or OPS are also added to the case file during the\n15 Id.\n16 DOT Enforcement Memo at 7-8.\n17 Id. at 10.\n18 See 49 CFR § 190.209(b)(1)–(4).\n\n<<<PAGE 5>>>\n\n5\nsubsequent phases of the proceeding.19 As a matter of policy, OPS also provides the respondent,\non request, with a copy of the worksheet used to calculate a civil penalty if that sanction is proposed\nin an enforcement proceeding.20\nIn the 2020 PIPES Act, Congress amended the Pipeline Safety Act to state that “all agency records\npertinent to the matters of fact and law asserted” must be included in the case file of a pipeline\nsafety enforcement proceeding.21 PHMSA has not revised the requirements in 49 CFR § 190.209\nsince the enactment of the 2020 PIPES Act, and OPS has not clearly addressed the implementation\nof this congressional mandate in its enforcement procedures.\nThe Acting General Counsel has also directed all Operating Administrations, including PHMSA,\nto voluntarily apply the Brady rule in enforcement proceedings initiated by DOT. The Brady rule\nimposes an affirmative disclosure obligation that exceeds the standards prescribed in 49 U.S.C. §\n60117(b)(1)(C) and 49 CFR § 190.209(b).22 Meeting that obligation requires OPS to include any\nmaterially exculpatory agency records in the case file, regardless of whether the respondent in a\npipeline safety enforcement proceeding makes a request for those records.\nTo ensure that the respondent is receiving all Agency records required under the Pipeline Safety\nAct and the DOT General Counsel’s memorandum, PHC is advising OPS to revise its procedures\nfor determining the contents of the case file in a pipeline safety enforcement proceeding.\nRECOMMENDATION\nEffective as of May 29, 2025, PHC is advising OPS to revise its procedures for determining the\ncontents of the case file in a pipeline safety enforcement proceeding. In developing that new\nprocedure, PHC is advising OPS to consider Congress’ directive “that the case file in an\nenforcement proceeding include all agency records pertinent to the matters of fact and law\nasserted.”23 PHC is further advising OPS to consider the provisions in the DOT Enforcement\nMemo, including the applicability of the Brady rule’s affirmative disclosure framework for\nmaterially exculpatory evidence as well as the directive to voluntarily share worksheets, manuals,\ncharts, or other appropriate materials about the calculation of a civil penalty.24\n19 See id. at § 190.209(b)(5)–(7).\n20 See Pipeline Safety: General Policy Statement; Civil Penalties, 81 Fed. Reg. 71,566, 71,566 (Oct. 17, 2016).\n21 49 U.S.C. § 60117(b)(1)(C). As a subsequent congressional enactment, the provisions in 49 U.S.C. §\n60117(b)(1)(C) determining the agency records that should be included in a pipeline safety enforcement proceeding\ncase file control in the event of a conflict with the regulatory requirements in 49 CFR § 190.209. See Norman v. U.S.,\n942 F.3d 1111, 1118 (Fed. Cir. 2019) (“It is well-settled that subsequently enacted or amended statutes supersede\nprior inconsistent regulations.”) (citing R&W Flammann GmbH v. U.S., 339 F.3d 1320, 1324 (Fed. Cir. 2003);\nBarsebäck Kraft AB v. United States, 121 F.3d 1475, 1480 (Fed. Cir. 1997); Farrell v. U.S., 313 F.3d 1214, 1219 (9th\nCir. 2002)).\n22 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring disclosure of exculpatory evidence \"material either to\nguilt or punishment\" known to the government but unknown to the defendant in criminal cases).\n23 49 U.S.C. § 60117(b)(1)(C).\n24 See DOT Enforcement Memo at 7–8, 10.\n\n<<<PAGE 6>>>\n\n6\nPHC is advising OPS to consider the other procedural protections afforded to the respondent in\ndeveloping its revised procedures. The availability of Agency records affects the respondent’s due\nprocess rights at various stages of an enforcement proceeding, including in deciding whether to\nrequest an informal hearing before a Presiding Official,25 and, if so, to introduce additional\nmaterials prior to a hearing,\n26 and to call and present testimony from witnesses during a hearing.27\nThe availability of agency records also affects whether the respondent can effectively “examine\nthe evidence and witnesses presented by” OPS.28\nPHC is advising OPS to apply its revised procedures in all enforcement actions that are currently\npending before PHMSA and in all future proceedings. PHC is not advising OPS to apply its\nrevised procedures retroactively to enforcement actions that were already the subject of a final\nadministrative action as provided in 49 CFR §§ 190.241 and 190.243(f). Nor is PHC advising\nOPS that its prior case file procedures violated any law, statute, or regulation.\n25 See 49 CFR § 190.208(a)(4), (b)(4).\n26 See 49 CFR § 190.211(d).\n27 See 49 CFR § 190.211(e).\n28 49 CFR § 190.211(e). PHC notes that the Presiding Official has the power to ensure that OPS includes the\nmaterials in the case file that are necessary to conduct a fair and impartial hearing and protect the procedural rights\nof the respondent under 49 CFR § 190.212.","truncated":false,"body_characters":16592}