Pipeline Safety: Enhanced Emergency Order Procedures
| Published date | 01 October 2019 |
| Citation | 84 FR 52015 |
| Record Number | 2019-20308 |
| Section | Rules and Regulations |
| Court | Pipeline And Hazardous Materials Safety Administration |
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]
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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.
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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.
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\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).
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[[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\
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\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.
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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.
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\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.
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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 engage in discovery
and to exercise other statutorily-required processes.
PHMSA Response
PHMSA has adopted the commenters' suggestion that the Associate
Administrator refer all petitions that request a formal hearing to an
ALJ, regardless of whether or not there are material facts in dispute.
PHMSA recognizes the commenters' concern that, because emergency
orders may be issued without prior notice or an opportunity for a
hearing, it is important that affected entities be given the chance to
develop an evidentiary record before an ALJ. Further, PHMSA notes that
an ALJ has broad authority to manage any challenges that may arise
during formal hearings, including discovery, evidence, and the
consolidation of petitions, all of which must be resolved on the
expedited schedule required under the statute. Therefore, for the
reasons cited above, PHMSA is modifying the language in 49 CFR
190.237(c) to refer any petition that requests a formal hearing to an
ALJ.
Summary of Public Comments to Sec. 190.237(c)(2), Petitions for
Review, Associate Administrator for Pipeline Safety Responsibilities,
No Formal Hearing Requested
API/AOPL requested clarification of the procedures to be used to
resolve a petition for review where the petitioner has not requested a
formal hearing or if the Associate Administrator denies a petitioner's
request to pursue the ALJ process. They suggest that even in the
absence of a formal hearing before an ALJ, a petitioner must be
afforded the right to develop an adequate record, including the right
to answer the agency's response to a petition for review.
PHMSA Response
As noted above, PHMSA has accepted the commenters' suggestion to
eliminate the authority of the Associate Administrator to deny a
petitioner's request for a formal hearing. As for those situations
where no formal hearing has been requested, these petitions will be
reviewed on the written record, just as is currently done for other
enforcement proceedings where no informal hearing has been requested.
In both cases, the final agency decision will be rendered by the
Associate Administrator.
The commenters have suggested that petitioners in non-hearing cases
need a greater opportunity to develop a full evidentiary record. The
PIPES Act mandates that PHMSA develop a review process generally in
conformance with Sec. 109.19 of this title. As such, Sec. 190.237
must, to the greatest extent practicable, remain consistent with these
regulations. Section 109.19(b) provides that an attorney designated by
the Office of Chief Counsel, PHMSA, may file and serve a response to a
petition for review, but does not include a right by the petitioner to
``reply,'' as suggested by the commenters. PHMSA believes, given the
timeframes established by the review process, that the most practicable
resolution with respect to the comment is for petitioners to take
advantage of the provisions laid out in the IFR. Safeguards already
exist to ensure a petitioner's ability to develop an adequate record
within the short time frames provided in the statute by amending its
petition or seeking reconsideration of the ALJ's report and
recommendation, or filing for judicial review in a district court of
the United States. Given that emergency orders can only be issued upon
a showing that an imminent hazard exists, the administrative process
for reviewing an emergency order must necessarily proceed on an
expedited basis.
Summary of Public Comments to Sec. 190.237(c)(3), Petitions for
Review, Associate Administrator for Pipeline Safety Responsibilities,
Consolidation
Several commenters objected to the consolidation provision in Sec.
190.237(c)(3). AFPM requested that this provision, which allows the
Associate Administrator to consolidate petitions for review that share
common issues of law or fact, be removed entirely from the final rule.
It commented that the Associate Administrator should not be permitted
to consolidate petitions unless each petitioner agrees to
consolidation, since the right to petition for review is an individual
right held by each affected entity. AFPM requested that if the
provision were not removed, then PHMSA should clarify the meaning of
the phrase ``substantially similar'' orders, as used in the IFR
preamble. Finally, it offered the alternative that if this provision
were removed from the final rule, petitioners could then ``elect to
consolidate their petitions through consent provided to the ALJ,'' who
could then consolidate ``genuinely similar petitioners.''
API/AOPL commented that the final rule should permit only ``like''
petitions to be consolidated, i.e., those that seek resolution pursuant
to the same procedural process. It stated that if a petitioner seeks
review of an emergency order under the more formal ALJ process, then
PHMSA should not then ``be able to deny that right'' by consolidating
the petition with others who seek resolution without a formal hearing.
It suggested that if a petitioner elects to forego a hearing and does
not wish to expend the resources required under the ALJ process, then
it should not be required to do so if its case were consolidated with
others requesting a formal hearing. API/AOPL stated that all
petitioners should have the right to decide individually if they wish
to pursue review under (c)(1) or (c)(2), and that such choice was
necessary to protect a petitioner's ability to elect the appropriate
procedural option for itself.
INGAA commented that PHMSA should explicitly state in its
regulations that where multiple petitions for review are consolidated,
the 30-day expiration period for the emergency order should be
controlled by the date that the first petition is filed. It also
suggested that the Associate Administrator should have the discretion
to de-consolidate a proceeding if circumstances warrant since it ``is
easily foreseeable that facts potentially altering the review
proceeding may arise after petitions for review have been
consolidated.''
PHMSA Response
PHMSA believes it is reasonable and practical to permit the
Associate Administrator to consolidate petitions for review. Given the
potential number of petitioners and the urgency of reviewing multiple
petitions, the best use of public resources may be to consolidate
substantially similar petitions so that such petitions can be processed
efficiently. If a petition is substantially similar to other petitions
filed under the same emergency order and is consolidated, the petition
is still afforded a full review. Each petitioner in a consolidated
proceeding retains the ability to protect its interests, whether in a
formal hearing or not, as neither proceeding is limited to considering
only one issue. It is in the best interests of the public and judicial
economy for PHMSA to have the discretion to require that substantially
similar petitions be resolved in a single proceeding.
PHMSA also sees no need to clarify the term ``substantially
similar,'' as it is applied to multiple petitions for review. The IFR
clearly states that ''substantially similar'' means where more than one
[[Page 52022]]
petition includes common issues of fact or law.
As for the suggestion by API/AOPL that PHMSA should permit only
``like'' petitions to be consolidated, i.e., those that seek resolution
pursuant to the same procedural process, the agency declines to accept
this suggestion. If one petitioner files a petition that does not
request a formal hearing and another one does, the commenters contend
that, if the former ``does not wish to expend the resources required
under the ALJ process, then it should not be required to do so.'' PHMSA
believes there would be no such requirement. If a non-hearing petition
is consolidated with a hearing petition that are considered together by
an ALJ, the non-hearing petitioner would not be forced to participate
in the formal hearing process. Its petition would still be considered
as part of the consolidated case, including any report and
recommendation issued by the ALJ, and would still be considered and
decided by the Associate Administrator through a final decision on the
consolidated case. The substantive claims of the non-hearing petitioner
would be fully considered and decided, just the same as they would be
if no hearing were held at all. Such a process would also be more
efficient and avoid a plethora of hearings and decisions on multiple
petitions.
PHMSA also declines to adopt the suggestion that where multiple
petitions for review have been consolidated, the 30-day expiration
period for the emergency order should be controlled by the date that
the first petition is filed. PHMSA believes such language is
unnecessary because Sec. 190.237(l) already makes clear that if a
decision has not been reached by the Associate Administrator on a
petition for review within 30 days, absent a written finding by the
Administrator that the emergency condition continues to exist, the
emergency order will cease to be effective. This means that if multiple
petitions have been filed and consolidated, the date the first petition
was filed will serve to start the 30-day review period and the
emergency order will expire 30 days thereafter unless the Administrator
finds that the emergency continues to exist.
Finally, PHMSA accepts INGAA's suggestion that Sec. 190.237(c)(3)
be amended to give the Associate Administrator the discretion to de-
consolidate a proceeding. The trade organization contends that factual
circumstances could potentially change after multiple petitions have
been consolidated that would warrant de-consolidation by the Associate
Administrator. In a proceeding where a non-hearing petition has been
consolidated with a hearing petition and assigned to an ALJ, the ALJ
would have the discretion to handle these petitions in the most
efficient manner, including possible de-consolidation. Where the
Associate Administrator has consolidated two non-hearing petitions, the
final rule gives him the discretion to de-consolidate the two cases if
changed circumstances warrant separation. PHMSA believes this would not
unduly delay the process, which has been intentionally streamlined to
provide expedited resolution of multiple potential petitions.
Summary of Public Comments to Sec. 190.237(c)(4), Petitions for
Review, Associate Administrator for Pipeline Safety Responsibilities,
Agency Authority To Request a Formal Hearing
The AFPM, API/AOPL, and INGAA commented that Sec. 190.237(c)(4),
which gives the Associate Administrator the right to request a formal
hearing, should be removed from the final rule. They state that section
16 does not provide PHMSA with this authority if a petitioner has not
requested a formal hearing. In the alternative, they request (1)
clarification of this authority (including the process by which the
decision is made); (2) clarification on the standard by which the
decision is made; (3) the circumstances that may give rise to such
agency action; and (4) how it can be appealed. API/AOPL and INGAA
stated that if entities aggrieved by an emergency order choose to
proceed without pursuing a formal ALJ hearing, then it would be counter
to the interests of administrative economy for the agency to impose a
more formal process that would require a petitioner to incur the
expenditure of time and resources needed for a formal hearing.
PHMSA Response
PHMSA accepts the commenters' suggestion to remove Sec.
109.237(c)(4). However, PHMSA has also clarified the consolidation
provision to make clear that the Associate Administrator may
consolidate a petition that does not include a formal hearing request
with one that does. The provision permitting the Associate
Administrator to require a formal hearing in such circumstances, even
where a petitioner has not requested one, is a reasonable and practical
case-management tool that allows multiple petitions to be heard
together and is not precluded by the PIPES Act. Where there is a
similar set of facts in dispute and multiple petitions, allowing an ALJ
to conduct a single formal hearing can appropriately conserve agency
resources. The use of the ALJ can also serve to protect the interests
of all petitioners in such circumstances by ensuring that there is a
full examination of the facts before PHMSA takes final agency action.
Summary of Public Comments to Sec. 190.237(d), Petitions for Review,
Formal Hearings
Chaparral suggested that the same formal hearing process should be
used for both emergency orders and CAOs, since PHMSA can issue both
without prior notice or hearing.\4\ Several industry groups also
expressed a concern about a lack of procedures in the IFR limiting ex
parte communications between PHMSA and the presiding ALJ. AFPM, API/
AOPL, and INGAA commented that a prohibition on ex parte communications
(i.e., private contacts between one party and the adjudicator or other
persons involved in preparing a final decision) between one party and
the presiding ALJ should be included in the final rule. AFPM suggested
that ex parte prohibitions should begin with the filing of a petition.
INGAA stated that ex parte rules should apply to any discussion between
the ALJ and the Administrator, Associate Administrator, or any other
PHMSA personnel acting on behalf of the agency with regard to the
merits of a petition for review. INGAA requested, on the other hand,
that ex parte rules should be clear so as not to foreclose ``continued
discussions between the affected operators and the Administrator,
Associate Administrator, or PHMSA personnel acting on behalf of the
Agency.''
---------------------------------------------------------------------------
\4\ The company's comment states: ``We believe that a Sec. 554
hearing should be afforded in all instances under Subpart 190 where
PHMSA is afforded the authority to take action prior to providing
the operator notice and an opportunity to be heard. Under this
approach, formal hearing regulations would apply not only to
[emergency orders] but also to CAOs.''
---------------------------------------------------------------------------
PHMSA Response
PHMSA declines to accept Chaparral's suggestion that the formal
hearing process be applied to CAOs. First, such a proposed change is
beyond the scope of this rulemaking. Second, passage of section 16 is
the only time Congress has authorized an affected entity to request a
formal hearing in an enforcement action brought by PHMSA, presumably
because emergency orders potentially can have much broader impacts than
CAOs and other enforcement actions directed against a single operator.
PHMSA also declines to accept the suggestion from AFPM, API/AOPL,
and INGAA that language be added to
[[Page 52023]]
paragraph (d) to prohibit ex parte communications in these formal
hearings. The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
already provides well-established procedures governing ex parte
communications in formal proceedings on the record (5 U.S.C.
557(d)(1)), including those established under this final rule.
Furthermore, these proceedings are also subject to standards
established in 14 CFR part 300, including Sec. Sec. 300.1, 300.2 and
300.4, for rules of conduct in formal proceedings on the record. These
provisions apply to all ALJs in the Office of Hearings and will be
followed for all formal hearings brought under these regulations.
However, in this paragraph of the final rule, PHMSA is making a
minor clerical revision to subparagraph (d)(2) to add the word
``statutes'' which was inadvertently left out of the IFR regulatory
text.
Summary of Public Comments to Sec. 190.237(g), Petitions for Review,
Report and Recommendation
Chaparral commented that the ALJ's report and recommendation should
be considered a final agency action subject to judicial review.
Chaparral expressed concern that the IFR was unclear whether an
aggrieved party that elects not to file a petition for reconsideration
could still seek judicial review of the emergency order. Chaparral
argued that by making the ALJ report and recommendation a final agency
action subject to judicial review, PHMSA would remove any uncertainty
about a petitioner's right to seek judicial review without first filing
a petition for reconsideration. The commenter believed that such a
change would prevent a denial of due process.
PHMSA Response
The PIPES Act mandates that PHMSA develop a review process
consistent with Sec. 109.19(g) of this title, to the greatest extent
practicable and not inconsistent with section 16. This particular
provision in the IFR conforms to the hazmat procedures, whereby the
Associate Administrator issues the final agency decision upon
consideration of the ALJ's report and recommendation, if there is one.
The IFR provides that a petitioner aggrieved by an ALJ report and
recommendation may file a petition for reconsideration with PHMSA's
Associate Administrator, who must then issue a final agency decision
within 30 days of receiving the original petition for review. If a
petitioner elects to forego the petition for reconsideration, the
Associate Administrator must still issue a decision within 30 days of
receiving the petition for review, and the petitioner may seek judicial
review from the Associate Administrator's decision. Therefore, a
petitioner's right to seek judicial review of final agency action on an
emergency order is assured, regardless of whether or not the petitioner
has sought reconsideration of the ALJ's report and recommendation.
However, in the regulatory text PHMSA has made a minor modification
to the language of this paragraph to clarify that the ALJ issues the
report and recommendation to the Associate Administrator, whose
decisions are considered final agency actions subject to judicial
review.
Summary of Public Comments to Sec. 190.237(h), Petitions for Review,
Petition for Reconsideration
API/AOPL and INGAA commented that to allow owners and operators
subject to an emergency order sufficient time to seek reconsideration,
the deadline for issuing a report and recommendation be changed from 25
days to 21 days. They suggested that petitioners be given additional
time to consider and submit a petition for reconsideration. The
commenters suggested that reducing the deadline to 21 days would allow
for a petition for reconsideration to be submitted within 3 days
instead of 1 day, and also allow PHMSA's response to the petition for
reconsideration be submitted within 3 days instead of 1 day.
PHMSA Response
Section 16 of the PIPES Act mandates that PHMSA, in issuing the
final rule, must develop a process that ``contains the same
procedures'' as subsections (d) and (g) of the Hazardous Materials
Regulations. Subsection (g) of those regulations specifies that the
ALJ's report and recommendation must ``be issued no later than 25 days
after receipt of the petition for review. . .'' Since this is one of
the provisions that must be identical to the Hazardous Materials
Regulations, PHMSA does not have the discretion to reduce the deadline
for an ALJ to issue a report and recommendation from 25 to 21 days, as
the commenters suggest. The timeline established in this final rule is
therefore the same as subsection (g) of the Hazardous Materials
Regulations.
In the final rule, PHMSA has modified the language of this
paragraph to clarify that a petitioner ``affected and aggrieved'' by
the ALJ's report and recommendation may file a petition for
reconsideration, and it has also corrected non-substantive
typographical errors. PHMSA has also extended the deadline for
submitting a petition for reconsideration by allowing a petitioner to
request reconsideration up until the 27th day after a petition for
review has been filed. This means that in the event an ALJ report and
recommendation is issued early (i.e., before the 25-day deadline), then
the petitioner gets additional time to file a petition for
reconsideration. Likewise, if the ALJ report is issued on or after the
twenty-fifth day, a petitioner will now have two days, rather than one,
to request reconsideration. This additional time was gained by
eliminating the agency's opportunity to respond to the petition for
reconsideration. PHMSA believes that the agency does not need an
opportunity to respond to a petition for reconsideration since the
Associate Administrator's decision will take into account the contents
of the petition and respond through the final agency action.
Summary of Public Comments to Sec. 190.237(i), Petitions for Review,
Judicial Review
Chaparral raised concerns about the process for judicial review of
an emergency order or a continuing-hazard determination. It stated that
all orders issued under 49 U.S.C. chapter 601, including the issuance
of a CAO prior to notice and an opportunity to a hearing, may currently
be appealed directly to a circuit court of appeals, but under the IFR,
judicial review of an emergency order lies with a Federal district
court. Given the similarities between the two types of enforcement
orders, Chaparral suggested that judicial review of an emergency order
be changed to a Federal circuit court.
PHMSA Response
Chaparral is correct that section 16 of the PIPES Act provides that
an aggrieved owner or operator may seek review of an emergency order in
a district court of the United States. While 49 U.S.C. 60119(a)
generally provides that the courts of appeals have jurisdiction over
petitions for the review of PHMSA orders issued under Chapter 601 of
Title 49, the later-enacted section 16 of the PIPES Act specifically
provides that judicial review of emergency orders must be sought in a
district court. PHMSA has therefore retained the language from section
16 in the final rule.
Summary of Public Comments to Sec. 190.237(j), Petitions for Review,
Expiration of Emergency Order
AGA and INGAA requested clarification that PHMSA may lift or remove
an emergency order from one or more owners/operators, while leaving it
in effect as to others. They stated that if
[[Page 52024]]
certain affected operators rectify the imminent hazard more quickly
than others, they should be able to petition for release from the
emergency order.
Similarly, API/AOPL requested clarification that PHMSA will provide
expedited relief from an emergency order if warranted by unique
circumstances, such as the need to address unintended consequences of
an order that has had a material impact on one or more operators. They
requested that PHMSA provide clarification that if unique circumstances
arise under an emergency order, a pipeline owner or operator would be
permitted to file a petition for expedited relief from an emergency
order, and that nothing in the regulations precludes the granting of
such relief.
Chaparral commented that four specific changes should be made to
Sec. 190.237(j): (1) PHMSA should explain the limited effect and
impact of a ``continuing hazard determination'' under various
scenarios, depending on whether or not a petition for review has been
filed and disposed of within 30 days; (2) PHMSA should limit the time-
frame during which a ``continuing hazard determination'' can be made to
the 30-day period following the filing of a petition for review; (3)
PHMSA should clarify what decision PHMSA must make within the 30-day
period; and (4) PHMSA should explain what effect, if any, a
``continuing hazard determination'' would have on a pending proceeding
to resolve a petition for review.
Chaparral also requested clarification of the judicial review
process for an emergency order. It presented a hypothetical situation
whereby the Administrator might deny a petition for reconsideration
from the ALJ's report and recommendation yet also issue a separate
order finding that an imminent hazard continues to exist past the
initial 30-day period. According to the commenter, ``Sec. 190.237(i)
appears to afford the aggrieved party two separate appeals involving
the same [emergency order]: one for judicial review of a final agency
decision under Sec. 190.237(h)(2), and one for judicial review of a
continuing hazard determination under Sec. 190.237(j).'' In addition,
Chaparral stated that there is nothing to prevent an aggrieved party
from appealing a determination made under Sec. 190.237(j) to one
Federal district court and appealing the other final agency decision to
an entirely different Federal district court.
PHMSA Response
PHMSA clarifies that nothing in the final rule precludes PHMSA from
granting expedited relief from an emergency order where PHMSA
determines that the imminent hazard has abated with respect to a
particular operator or group of operators, or from modifying the
emergency order to grant partial relief where warranted by changed
circumstances. An emergency order will contain procedures by which
individual owners and operators may file petitions for review
requesting that PHMSA terminate the emergency order as to them.
The Associate Administrator's decision on a petition for review is
final agency action, subject to judicial review. If the Associate
Administrator has not disposed of a petition for review within 30 days
after it is filed, and the Administrator determines, in writing, that
the imminent hazard providing a basis for the emergency order continues
to exist, the petitioner may seek judicial review of the emergency
order at that time, or wait to seek judicial review of the Associate
Administrator's decision, but not both. The regulatory text provides
that a petitioner may seek judicial review of an emergency order after
a decision by the Associate Administrator on the petition or the
issuance of a written determination by the Administrator.
As for Chaparral's other requested changes and questions, PHMSA has
amended paragraph (l) to make clear that if no petition for review is
filed, then the emergency order will continue in effect until PHMSA
makes a written determination that the imminent hazard no longer exists
and terminates the order. PHMSA declines to modify that same paragraph
to specify the time frame during which a ``continuing hazard
determination'' can be made since the current language makes clear that
such a finding must be made during the 30-day period following the
filing of a petition for review.
The agency does clarify, however, that in all instances, the
Associate Administrator must issue a decision on a petition for review
of an emergency order within 30 days, and thus a petition for
reconsideration of an ALJ's report and recommendation does not extend
this deadline. If the Associate Administrator does not reach a decision
on the petition for review within 30 days, then the emergency order
will expire, unless the Administrator makes a determination, in
writing, that an imminent hazard continues to exist. If the
Administrator determines that an imminent hazard continues to exist,
and issues this opinion in writing to prevent the expiration of an
emergency order, it would have no effect on the Associate
Administrator's decision on a pending petition. The Associate
Administrator's decision may still modify or terminate an emergency
order.
PHMSA is also making a minor clerical correction to this paragraph
to remove language regarding the ALJ not disposing of the petition for
review. This was a typographical error.
Additional Public Comment
After the comment period had closed, AFPM filed a supplemental
comment as part of its larger response to DOT's Transportation
Infrastructure docket, see DOT-OST-2017-0057, which was published in
the Federal Register on June 8, 2017. 82 FR 26734. AFPM reiterated
several of its earlier comments in light of the DOT Request for
Comments and the policy considerations contained in Executive Orders
13771, 13777, and 13873. AFPM suggested that PHMSA should consider any
potential impacts to ongoing or planned pipeline infrastructure
projects prior to issuing an emergency order.
PHMSA Response
PHMSA notes that section 16 does not expand PHMSA's general
authority to regulate pipeline transportation and pipeline facilities
but merely provides a means by which the agency may take immediate
action when, in extraordinary circumstances, an imminent safety hazard
exists that involves multiple owners or operators of gas or hazardous
liquid pipeline facilities. The statute requires that the emergency
order be narrowly tailored to abate the imminent hazard. Additionally,
the regulations require PHMSA to consider the impacts and consult, as
the Administrator determines appropriate, with appropriate Federal
agencies, State agencies, and other entities knowledgeable in pipeline
safety or operations. These protections are designed to minimize
potential adverse impacts, including impacts on planned and ongoing
pipeline projects.
IV. Section-by-Section Analysis
PHMSA is including a discussion about each section of the final
rule, not just the amendments to the IFR, for ease of comprehension and
clarity. Below is a summary and analysis of the regulatory provisions
in the final rule.
Section 190.3 Definitions
This section contains a comprehensive set of definitions for part
190. PHMSA adds a new definition for ``formal hearing'' and revises the
definitions for ``Emergency order'' and ``imminent hazard.''
[[Page 52025]]
Section 190.5 Service
Paragraph (a) is revised to remove the exception of personal
service for emergency orders.
Section 190.236 Emergency Orders
PHMSA revises the language of Sec. 190.236(a) to remove the
reference to ``violation'' in the introductory language serving as the
basis for issuing an emergency order.
PHMSA is making a non-substantive change to paragraph (b) so that
the regulatory text concerning consultation tracks the statutory text
in section 16.
Paragraph (c) is amended to conform with the statutory requirement,
by adding the phrase ``as appropriate'' to the regulatory text
regarding consultation.
Paragraph (d) is amended to provide that PHMSA will personally
serve an emergency order on pipeline operators subject to the order, by
certified mail, overnight courier, or electronic transmission by
facsimile or other electronic means that includes reliable
acknowledgement of actual receipt.
Paragraph (e) is added to establish the steps PHMSA will take if an
emergency order remains in effect for more than 365 days.
Section 190.237 Petitions for Review
Paragraph (a)(2) is amended to use the term ``modified or
terminated'' rather than ``amended or rescinded'' to describe the
relief sought by a petitioner. These terms are consistent with the
introductory language in paragraph (a).
Paragraph (b) is added to allow a petitioner to modify its petition
for review to provide new information that materially affects the
review proceeding. The Associate Administrator or the presiding ALJ in
a formal hearing will determine whether to accept the new materials.
Paragraph (d)(1) is amended to provide that the Associate
Administrator will accept all requests for formal hearings and forward
them to the DOT Office of Hearings.
Paragraph (d)(3) is amended to require that consolidation occur
before a formal hearing commences, to clarify that the Associate
Administrator may consolidate a petition that did not request a formal
hearing with one or more petitions that have been forwarded to the DOT
Office Hearings for a formal hearing, and to de-consolidate multiple
petitions that have not requested a formal hearing if he determines
that there has been a change in circumstances that warrants separation.
Paragraph (f) is redesignated as paragraph (g) and is revised to
explain that PHMSA has the burden of proof, except in the case of an
affirmative defense asserted by a petitioner.
Paragraphs (f) through (k) are redesignated as (g) through (l).
Paragraph (h)(2)(iii) is edited to correct the mailing address of
the DOT Office of Hearings.
Paragraph (j) is added to provide additional time for a petitioner
to file a petition for reconsideration of an administrative law judge's
report and recommendation, permitting five days to file for
reconsideration if the report and recommendation is issued 20 days or
less after the petition for review was filed with PHMSA or two days to
file for reconsideration if the report and recommendation is issued
more than 20 days after the petition for review was filed.
Paragraph (l) is revised to provide clarity on when an emergency
order expires, and to state that if the Associate Administrator has not
issued a decision within 30 days of a petition for review, the
emergency order shall expire unless the Administrator determines, in
writing, that the imminent hazard providing a basis for the emergency
order continues to exist.
IV. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Final Rule
PHMSA's general authority to publish this final rule and prescribe
pipeline safety regulations is codified at 49 U.S.C. 60101, et seq.
Section 16 of the PIPES Act authorizes the Secretary of Transportation
to establish procedures for the issuance of emergency orders that will
be used to address an unsafe condition or practice, or combination of
unsafe conditions or practices, that pose an imminent hazard to public
health and safety or the environment. The Secretary has delegated the
responsibility to exercise this authority to the Administrator. See 49
CFR 1.97(a).
B. Executive Order 12866, Executive Order 13563, and DOT Policies and
Procedures
This final rule is a significant regulatory action under Executive
Order 12866, 58 FR 51735, and the Regulatory Policies and Procedures of
the Department of Transportation. The rule was therefore reviewed by
the Office of Management and Budget. Pursuant to the Congressional
Review Act (5 U.S.C. 801 et seq., the Office of Information and
Regulatory Affairs designated this rule as not a ``major rule,'' as
defined by 5 U.S.C. 804(2).
Executive Orders 12866 and 13563 require agencies to regulate in
the ``most cost-effective manner,'' to make a ``reasoned determination
that the benefits of the intended regulation justify its costs,'' and
to develop regulations that ``impose the least burden on society.''
This final rule solely affects agency enforcement procedures to
implement the emergency-order provisions of the law, and therefore this
rulemaking results in no additional burden or compliance costs to
industry. However, under circumstances warranting that PHMSA issue an
emergency order, there may be incremental compliance actions and costs
to operators and benefits related to the immediate lessening of the
imminent risks of death, serious illness, severe personal injury, or a
substantial endangerment to health, property, or the environment across
the entirety of affected populations and environments. In the case of
existing regulatory provisions, costs and benefits are attributable to
the original rulemaking.
Executive Order 13771
This proposed rule is not subject to the requirements of Executive
Order 13771 because this rule results in no more than de minimis costs.
Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism;'' 64 FR
43255; Aug. 10, 1999). This final rule does not introduce any
regulation that: (1) Has substantial direct effects on the States, the
relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government; (2) imposes substantial direct compliance costs on State
and local governments; or (3) preempts State law. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
Further, this final rule does not have an impact on federalism that
warrants preparation of a federalism assessment.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 60101 et seq., requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule will not have a significant
impact on a substantial number of small entities. Because this rule
does not directly impact any entity, PHMSA determined that this final
rule will not have a significant impact on a substantial number of
small entities.
[[Page 52026]]
D. Paperwork Reduction Act
PHMSA has analyzed this final rule in accordance with the Paperwork
Reduction Act of 1995 (PRA; Pub. L. 96-511; Dec. 11, 1980). The PRA
requires Federal agencies to minimize paperwork burden imposed on the
American public by ensuring maximum utility and quality of Federal
information, ensuring the use of information technology to improve
Government performance, and improving the Federal government's
accountability for managing information collection activities. This
final rule contains no new information collection requirements subject
to the PRA. In the IFR, PHMSA requested comment on the potential
paperwork burdens associated with this rulemaking. PHMSA received no
comments related to paperwork burdens associated with the emergency
order provisions or other potential information requests related to
them.
E. Executive Order 13175
PHMSA has analyzed this final rule according to the principles and
criteria in Executive Order 13175 (``Consultation and Coordination with
Indian Tribal Governments;'' 65 FR 67249; Nov. 9, 2000). Because this
final rule will not significantly or uniquely affect the communities of
the Indian tribal governments or impose substantial direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
F. Executive Order 13211
This final rule is not a significant energy action under Executive
Order 13211 (66 FR 28355; May 18, 2001). It is not a significant
regulatory action under Executive Order 12866 and is not likely to have
a significant, adverse effect on the supply, distribution, or use of
energy. Furthermore, this final rule has not been designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action.
G. Unfunded Mandates Reform Act of 1995
This final rule would not impose unfunded mandates under the
Unfunded Mandates Act of 1995 (Pub. L. 104-4; Dec. 4, 1995). The final
rule would not result in annual costs of $100 million or more, in the
aggregate, to any of the following: State, local, or Indian tribal
governments, or the private sector, and is the least burdensome
alternative to achieve the objective of the final rule.
H. Environmental Assessment
The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires that Federal agencies analyze proposed actions to determine
whether an action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
order Federal agencies to conduct an environmental review considering
(1) the need for the proposed action (2) alternatives to the proposed
action (3) probable environmental impacts of the proposed action and
alternatives and (4) the agencies and persons consulted during the
consideration process. 40 CFR 1508.9(b).
1. Purpose and Need
Congress enacted the PIPES Act, in part, to address safety issues
affecting multiple or all owners/operators of gas or hazardous liquid
pipeline facilities
2. Alternatives
Because this final rule addresses a congressional mandate, PHMSA
has limited latitude in defining alternative courses of action. The
option of taking no action would be both inconsistent with Congress'
direction and undesirable from the standpoint of safety and
enforcement. Failure to implement the new authority would continue
PHMSA's inability to address conditions or practices constituting an
imminent risk of death, serious illness, severe personal injury, or a
substantial endangerment to health, property, or the environment.
3. Analysis of Environmental Impacts
There are no direct environmental impacts to analyze. However, the
issuance of an emergency order represents a reduction in imminent risk
of death, serious illness, severe personal injury, or a substantial
endangerment to health, property, or the environment that cannot be
lessened timely enough through a formal proceeding begun to lessen the
risk.
I. Regulation Identifier Number
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
spring and fall of each year. The RIN contained in the heading of this
document can be used to cross-reference this action with the United
Agenda.
J. Privacy Act
Anyone can search the electronic form of all comments received into
any of our dockets by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review DOT's complete Privacy Act
Statement published in the Federal Register, (see 65 FR 19477-78; April
11, 2000), or you may visit http://www.regulations.gov.
List of Subjects in 49 CFR Part 190
Emergency orders; Administrative practice and procedures.
For the reasons discussed in the preamble, the interim rule
amending 49 CFR part 190, which was published on October 14, 2016, (81
FR 70980) is adopted as a final rule with the following amendments:
PART 190--PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES
0
1. The authority citation for Part 190 continues to read as follows:
Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq.; 49 CFR
1.97; Pub. L. 114-74, section 701; Pub. L. No: 112-90, section 2;
Pub. L. 101-410, sections 4-6.
0
2. Amend Sec. 190.3 as follows:
0
a. Revise the definitions of ``Emergency order'' and ``Imminent
hazard'' in alphabetical order; and
0
b. Add the definition of ``Formal hearing'' in alphabetical order.
The revisions and addition read as follows:
Sec. 190.3 Definitions.
* * * * *
Emergency order means a written order issued in response to an
imminent hazard imposing restrictions, prohibitions, or safety measures
on owners and operators of gas or hazardous liquid pipeline facilities,
without prior notice or an opportunity for a hearing.
Formal hearing means a formal review in accordance with 5 U.S.C.
554, conducted by an administrative law judge.
* * * * *
Imminent hazard means the existence of a condition relating to a
gas or hazardous liquid pipeline facility 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.
* * * * *
0
3. In Sec. 190.5, revise paragraph (a) to read as follows:
Sec. 190.5 Service.
(a) Each order, notice, or other document required to be served
under
[[Page 52027]]
this part, will be served personally, by certified mail, overnight
courier, or electronic transmission by facsimile or other electronic
means that includes reliable acknowledgement of actual receipt.
* * * * *
0
4. Revise Sec. 190.236 to read as follows:
Sec. 190.236 Emergency orders: Procedures for issuance and rescision.
(a) Determination of imminent hazard. When the Administrator
determines that an unsafe condition or practice, or a combination of
unsafe conditions and practices, constitutes or is causing an imminent
hazard, as defined in Sec. 190.3, the Administrator may issue or
impose an emergency order, without advance notice or an opportunity for
a hearing, but only to the extent necessary to abate the imminent
hazard. The order will contain a written description of:
(1) The violation, condition, or practice that constitutes or is
causing the imminent hazard;
(2) Those entities subject to the order;
(3) The restrictions, prohibitions, or safety measures imposed;
(4) The standards and procedures for obtaining relief from the
order;
(5) How the order is tailored to abate the imminent hazard and the
reasons the authorities under 49 U.S.C. 60112 and 60117(l) are
insufficient to do so; and
(6) How the considerations listed in paragraph (c) of this section
were taken into
account.
(b) Consultation. In considering the factors under paragraph (c) of
this section, the Administrator shall consult, as the Administrator
determines appropriate, with appropriate Federal agencies, State
agencies, and other entities knowledgeable in pipeline safety or
operations.
(c) Considerations. Prior to issuing an emergency order, the
Administrator shall consider the following, as appropriate:
(1) The impact of the emergency order on public health and safety;
(2) The impact, if any, of the emergency order on the national or
regional economy or national security;
(3) The impact of the emergency order on the ability of owners and
operators of pipeline facilities to maintain reliability and continuity
of service to customers; and
(4) The results of any consultations with appropriate Federal
agencies, State agencies, and other entities knowledgeable in pipeline
safety or operations.
(d) Service. The Administrator will provide service of emergency
orders in accordance with Sec. 190.5 to all operators of gas and
hazardous liquid pipeline facilities that the Administrator reasonably
expects to be affected by the emergency order. In addition, the
Administrator will publish emergency orders in the Federal Register and
post them on the PHMSA website as soon as practicable upon issuance.
Publication in the Federal Register will serve as general notice of an
emergency order. Each emergency order must contain information
specifying how pipeline operators and owners may respond to the
emergency order, filing procedures, and service requirements, including
the address of DOT Docket Operations and the names and addresses of all
persons to be served if a petition for review is filed.
(e) Rescission. If an emergency order has been in effect for more
than 365 days, the Administrator will make an assessment regarding
whether the unsafe condition or practice, or combination of unsafe
conditions and practices, constituting or causing an imminent hazard,
as defined in Sec. 190.3, continues to exist. If the imminent hazard
does not continue to exist, the Administrator will rescind the
emergency order and follow the service procedures set forth in Sec.
190.236(d). If the imminent hazard underlying the emergency order
continues to exist, PHMSA will initiate a rulemaking action as soon as
practicable.
0
5. Revise Sec. 190.237 to read as follows:
Sec. 190.237 Emergency orders: Petitions for review.
(a) Requirements. A pipeline owner or operator that is subject to
and aggrieved by an emergency order may petition the Administrator for
review to determine whether the order will remain in place, be
modified, or be terminated. A petition for review must:
(1) Be in writing;
(2) State with particularity each part of the emergency order that
is sought to be modified or terminated and include all information,
evidence and arguments in support thereof;
(3) State whether the petitioner requests a formal hearing in
accordance with 5 U.S.C. 554, and, if so, any material facts in
dispute; and,
(4) Be filed and served in accordance with paragraph (h) of this
section.
(b) Modification of petitions. A petitioner may modify its petition
for review to provide new information that materially affects the
review proceeding and that is timely submitted. Where the petitioner
has not requested a formal hearing, the Associate Administrator will
make the determination whether to accept the new information. Where a
case has been assigned for a formal hearing, the presiding
administrative law judge will determine whether to accept the new
information.
(c) Response to the petition for review. An attorney designated by
the Office of Chief Counsel may file and serve, in accordance with
paragraph (h) of this section, a response to the petition, including
appropriate pleadings, within five calendar days of receipt of the
petition by the Chief Counsel.
(d) Associate Administrator's responsibilities.--(1) Formal hearing
requested. Upon receipt of a petition for review that includes a formal
hearing request under this section, the Associate Administrator will,
within three days after receipt of the petition, assign the petition to
the Office of Hearings, DOT, for a formal hearing.
(2) No formal hearing requested. Upon receipt of a petition for
review that does not include a formal hearing request, the Associate
Administrator will issue an administrative decision on the merits
within 30 days of receipt of the petition for review. The Associate
Administrator's decision constitutes the agency's final decision.
(3) Consolidation. If the Associate Administrator receives more
than one petition for review and they share common issues of law or
fact, the Associate Administrator may consolidate the petitions for the
purpose of complying with this section, provided such consolidation
occurs prior to the commencement of a formal hearing. The Associate
Administrator may reassign a petition that does not request a formal
hearing to the Office of Hearings, DOT, provided the petition otherwise
meets the requirements for consolidation. If the Associate
Administrator has consolidated multiple petitions that do not request a
formal hearing, he may de-consolidate such petitions if there has been
a change in circumstances that, in his discretion, warrant separation
for the purpose of rendering a final decision.
(e) Formal Hearings. Formal hearings must be conducted by an
administrative law judge assigned by the chief administrative law judge
of the Office of Hearings, DOT. The administrative law judge may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by the appropriate statutes and
agency regulations (e.g., 49 U.S.C. 60117 and 49 CFR 190.7);
(3) Adopt the relevant Federal Rules of Civil Procedure for the
United States District Courts for the procedures
[[Page 52028]]
governing the hearings, when appropriate;
(4) Adopt the relevant Federal Rules of Evidence for United States
Courts and Magistrates for the submission of evidence, when
appropriate;
(5) Take or cause depositions to be taken;
(6) Examine witnesses at the hearing;
(7) Rule on offers of proof and receive relevant evidence;
(8) Convene, recess, adjourn or otherwise regulate the course of
the hearing;
(9) Hold conferences for settlement, simplification of the issues,
or any other proper purpose; and
(10) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of an issue raised.
(f) Parties. The petitioner may appear and be heard in person or by
an authorized representative. PHMSA will be represented by an attorney
designated by the Office of Chief Counsel.
(g) Burden of proof. Except in the case of an affirmative defense,
PHMSA shall bear the burden of proving, by a preponderance of the
evidence, the validity of an emergency order in a proceeding under this
section by a preponderance of the evidence. A party asserting an
affirmative defense shall bear the burden of proving, by a
preponderance of the evidence, the affirmative defense in a proceeding
under this section.
(h) Filing and service. (1) Each petition, pleading, motion,
notice, order, or other document submitted in connection with an
emergency order issued under this section must be filed (commercially
delivered or submitted electronically) with: U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. All
documents filed will be published on the Department's docket management
website, http://www.regulations.gov. The emergency order must state the
above filing requirements and the address of DOT Docket Operations.
(2) Each document filed in accordance with paragraph (h)(1) of this
section must be concurrently served upon the following persons:
(i) Associate Administrator for Pipeline Safety, OPS, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, East Building, Washington,
DC 20590;
(ii) Chief Counsel, PHC, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, East Building, Washington, DC 20590 (facsimile: 202-366-
7041); and
(iii) If the petition for review requests a formal hearing, the
Chief Administrative Law Judge, U.S. Department of Transportation,
Office of Hearings, 1200 New Jersey Ave SE, c/o Mail Center (E11-310),
Washington, DC 20590 (facsimile: 202-366-7536).
(3) Service must be made in accordance with Sec. 190.5 of this
part. The emergency order must state all relevant service requirements
and list the persons to be served and may be updated as necessary.
(4) Certificate of service. Each order, pleading, motion, notice,
or other document must be accompanied by a certificate of service
specifying the manner in which and the date on which service was made.
(5) If applicable, service upon a person's duly authorized
representative, agent for service, or an organization's president or
chief executive officer constitutes service upon that person.
(i) Report and recommendation. The administrative law judge must
issue a report and recommendation to the Associate Administrator at the
close of the record. The report and recommendation must:
(1) Contain findings of fact and conclusions of law and the grounds
for the decision, based on the material issues of fact or law presented
on the record;
(2) Be served on the parties to the proceeding; and
(3) Be issued no later than 25 days after receipt of the petition
for review by the Associate Administrator.
(j) Petition for reconsideration. (1) A petitioner aggrieved by the
administrative law judge's report and recommendation may file a
petition for reconsideration with the Associate Administrator. The
petition for reconsideration must be filed:
(i) Not more than five days after the administrative law judge has
issued a report and recommendation under paragraph (i) of this section,
provided such report and recommendation is issued 20 days or less after
the petition for review was filed with PHMSA; or
(ii) Not more than two days after the administrative law judge has
issued his or her report and recommendation under paragraph (h) of this
section, where such report and recommendation are issued more than 20
days after the petition for review was filed with PHMSA.
(2) The Associate Administrator must issue a decision on a petition
for reconsideration no later than 30 days after receipt of the petition
for review. Such decision constitutes final agency action on a petition
for review.
(k) Judicial review. (1) After the issuance of a final agency
decision pursuant to paragraphs (d)(2) or (j)(2) of this section, or
the issuance of a written determination by the Administrator pursuant
to paragraph (l) of this section, a pipeline owner or operator subject
to and aggrieved by an emergency order issued under Sec. 190.236 may
seek judicial review of the order in the appropriate district court of
the United States. The filing of an action seeking judicial review does
not stay or modify the force and effect of the agency's final decision
under paragraphs (d)(2) or (j)(3) of this section, or the written
determination under paragraph (l) of this section, unless stayed or
modified by the Administrator.
(l) Expiration of order. (1) No petition for review filed: If no
petition for review is filed challenging the emergency order, then the
emergency order shall remain in effect until PHMSA determines, in
writing, that the imminent hazard no longer exists or the order is
terminated by a court of competent jurisdiction.
(2) Petition for review filed and decision rendered within 30 days.
If the Associate Administrator renders a final decision upon a petition
for review within 30 days of its receipt by PHMSA, any elements of the
emergency order upheld or modified by the decision shall remain in
effect until PHMSA determines, in writing, that the imminent hazard no
longer exists or the order is terminated by a court of competent
jurisdiction.
(3) Petition for review filed but no decision rendered within 30
days. If the Associate Administrator has not reached a decision on the
petition for review within 30 days of receipt of the petition for
review, the emergency order will cease to be effective unless the
Administrator determines, in writing, that the imminent hazard
providing a basis for the emergency order continues to exist.
(m) Time. In computing any period of time prescribed by this
section or an order or report and recommendation issued by an
administrative law judge under this section, the day of filing of a
petition for review or of any other act, event or default from which
the designated period of time begins to run will not be included. The
last day of the period so computed will be included, unless it is a
Saturday, Sunday, or Federal holiday, in which event the
[[Page 52029]]
period runs until end of the next day which is not one of the
aforementioned days.
Issued in Washington, DC on September 16, 2019, under authority
delegated in 49 CFR 1.97.
Howard R. Elliott,
Administrator.
[FR Doc. 2019-20308 Filed 9-90-19; 8:45 am]
BILLING CODE 4910-60-P
