[Federal Register Volume 61, Number 189 (Friday, September 27, 1996)]
[Rules and Regulations]
[Pages 50908-50911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24399]


      

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Part II





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 106 and 190



Pipeline Safety Rulemaking Procedures; Final Rule

  Federal Register / Vol. 61, No. 189 / Friday, September 27, 1996 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 106 and 190

[Docket RSP-2; Admt. Nos. 106-12, 190-1]
RIN 2137-AC94


Pipeline Safety Rulemaking Procedures

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: RSPA is replicating in 49 CFR Part 190 its rulemaking 
procedures presently found in 49 CFR Part 106. This will enable persons 
in the pipeline industry to obtain a single volume of the Code of 
Federal Regulations that contains both the pipeline safety program 
regulations and the pipeline rulemaking procedures. The intended effect 
of this action is to reduce the pipeline industry's cost of purchasing 
regulations and to increase user convenience by placing the rulemaking 
procedures in the same volume with program procedures. RSPA has taken 
these actions in response to President Clinton's regulatory reinvention 
initiative.

EFFECTIVE DATE: October 1, 1996.

FOR FURTHER INFORMATION CONTACT: Paul Sanchez, Attorney, Office of the 
Chief Counsel, RSPA, Department of Transportation, 400 Seventh Street, 
SW., Washington, DC 20590-0001; Telephone (202) 366-4400; or online at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 4, 1995, President Clinton issued a memorandum to heads of 
departments and agencies calling for a review of all agency regulations 
to eliminate or revise those regulations that are outdated or in need 
of reform. In response to the President's directive, RSPA extensively 
reviewed its Hazardous Materials Regulations (HMR; 49 CFR Parts 171-
180), Pipeline Safety Regulations (49 CFR Parts 190-199) and its 
procedural rules in 49 CFR Parts 106, 107 and 110.
    In its review, RSPA determined that it could eliminate sufficient 
HMR pages to facilitate the future publication of separate, stand-alone 
Code of Federal Regulation volumes for the HMR and the pipeline safety 
regulations. To do this, it is necessary to reproduce in the pipeline 
safety regulations the rulemaking procedures currently in Part 106. 
This action will enable persons in the pipeline industry to obtain a 
single volume of the CFR that contains both the pipeline safety 
regulations and the applicable rulemaking procedures. This rulemaking 
replicates in Part 190 the rulemaking procedures existing in Part 106, 
including those changes made in the final rule published June 14, 1996 
(FR 30175). Since this rulemaking does not impose new requirements, 
notice and public procedure are unnecessary. For the same reason, there 
is good cause to make these amendments effective without the customary 
30-day delay following publication. This will allow the changes to 
appear in the next revision of 49 CFR.

II. Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and was not reviewed by the 
Office of Management and Budget. The rule is not considered significant 
under the regulatory policies and procedures of the Department of 
Transportation (44 FR 11034). The economic impact of this rule is 
minimal to the extent that the preparation of a regulatory evaluation 
is not warranted.

Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612 (``Federalism''), and 
RSPA has determined that preparation of a federalism assessment is not 
warranted.

Regulatory Flexibility Act

    I certify that this final rule will not have a significant economic 
impact on a substantial number of small entities. This rule does not 
impose any new requirements on persons subject to the HMR or the 
Pipeline Safety Regulations.

Paperwork Reduction Act

    This final rule does not impose any new information collection 
requirements.

Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

49 CFR Part 106

    Administrative practice and procedure, Hazardous materials 
transportation, Oil.

49 CFR Part 190

    Administrative practice and procedure, Pipeline safety.

    In consideration of the foregoing, 49 CFR chapter I is amended as 
follows:
    1. The heading of subchapter A of Chapter I is revised to read as 
follows:

Subchapter A--Hazardous Materials and Oil Transportation

PART 106--RULEMAKING PROCEDURES

    2. The authority citation for part 106 is revised to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec. 106.3  [Amended]

    3. In Sec. 106.3, paragraph (b) is removed and paragraph (c) is 
redesignated as paragraph (b).

Subchapter D--Pipeline Safety

PART 190 --PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES

    4. The heading of part 190 is revised to read as set forth above:
    5. The authority citation for Part 190 is revised to read as 
follows:

    Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 60101 et seq.; 
49 CFR 1.53.

    6. Subpart C is added to part 190 to read as follows:

Subpart C--Procedures for Adoption of Rules

Sec.
190.301  Scope.
190.303  Delegations.
190.305  Regulatory dockets.
190.307  Records.
190.309  Where to file petitions.
190.311  General.
190.313  Initiation of rulemaking.
190.315  Contents of notices of proposed rulemaking.
190.317  Participation by interested persons.
190.319  Petitions for extension of time to comment.
190.321  Contents of written comments.
190.323  Consideration of comments received.
190.325  Additional rulemaking proceedings.
190.327  Hearings.
190.329  Adoption of final rules.
190.331  Petitions for rulemaking.
190.333  Processing of petition.
190.335  Petitions for reconsideration.
190.337  Proceedings on petitions for reconsideration.

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190.338  Appeals.
190.339  Direct final rulemaking.

Subpart C--Procedures for Adoption of Rules


Sec. 190.301  Scope.

    This subpart prescribes general rulemaking procedures for the 
issue, amendment, and repeal of Pipeline Safety Program regulations of 
the Research and Special Programs Administration of the Department of 
Transportation.


Sec. 190.303  Delegations.

    For the purposes of this subpart, Administrator means the 
Administrator, Research and Special Programs Administration, or his or 
her delegate.


Sec. 190.305  Regulatory dockets.

    (a) Information and data considered relevant by the Administrator 
relating to rulemaking actions, including notices of proposed 
rulemaking; comments received in response to notices; petitions for 
rulemaking and reconsideration; denials of petitions for rulemaking and 
reconsideration; records of additional rulemaking proceedings under 
Sec. 190.325; and final regulations are maintained by the Research and 
Special Programs Administration at 400 7th Street, SW, Washington, D.C. 
20590-0001.
    (b) Any person may examine any docketed material at the offices of 
the Research and Special Programs Administration at any time during 
regular business hours after the docket is established, except material 
which the Administrator determines should be withheld from public 
disclosure under applicable provisions of any statute administered by 
the Administrator and section 552(b) of Title 5, United States Code, 
and may obtain a copy of it upon payment of a fee.


Sec. 190.307  Records.

    Records of the Research and Special Programs Administration 
relating to rulemaking proceedings are available for inspection as 
provided in section 552(b) of title 5, United States Code, and part 7 
of the Regulations of the Office of the Secretary of Transportation 
(part 7 of this title).


Sec. 190.309  Where to file petitions.

    Petitions for extension of time to comment submitted under 
Sec. 190.319, petitions for hearings submitted under Sec. 190.327, 
petitions for rulemaking submitted under Sec. 190.331, and petitions 
for reconsideration submitted under Sec. 190.335 must be submitted to: 
Administrator, Research and Special Programs Administration, U.S. 
Department of Transportation, 400 7th Street, SW., Washington, D.C. 
20590-0001.


Sec. 190.311  General.

    Unless the Administrator, for good cause, finds that notice is 
impracticable, unnecessary, or contrary to the public interest, and 
incorporates that finding and a brief statement of the reasons for it 
in the rule, a notice of proposed rulemaking is issued and interested 
persons are invited to participate in the rulemaking proceedings with 
respect to each substantive rule.


Sec. 190.313  Initiation of rulemaking.

    The Administrator initiates rulemaking on his or her own motion; 
however, in so doing, the Administrator may use discretion to consider 
the recommendations of other agencies of the United States or of other 
interested persons including those of any technical advisory body 
established by statute for that purpose.


Sec. 190.315  Contents of notices of proposed rulemaking.

    (a) Each notice of proposed rulemaking is published in the Federal 
Register, unless all persons subject to it are named and are personally 
served with a copy of it.
    (b) Each notice, whether published in the Federal Register or 
personally served, includes:
    (1) A statement of the time, place, and nature of the proposed 
rulemaking proceeding;
    (2) A reference to the authority under which it is issued;
    (3) A description of the subjects and issues involved or the 
substance and terms of the proposed regulation;
    (4) A statement of the time within which written comments must be 
submitted; and
    (5) A statement of how and to what extent interested persons may 
participate in the proceeding.


Sec. 190.317  Participation by interested persons.

    (a) Any interested person may participate in rulemaking proceedings 
by submitting comments in writing containing information, views or 
arguments in accordance with instructions for participation in the 
rulemaking document.
    (b) The Administrator may invite any interested person to 
participate in the rulemaking proceedings described in Sec. 190.325.
    (c) For the purposes of this subpart, an interested person includes 
any Federal or State government agency or any political subdivision of 
a State.


Sec. 190.319  Petitions for extension of time to comment.

    A petition for extension of the time to submit comments must be 
received not later than 10 days before expiration of the time stated in 
the notice. It is requested, but not required, that three copies be 
submitted. The filing of the petition does not automatically extend the 
time for petitioner's comments. A petition is granted only if the 
petitioner shows good cause for the extension, and if the extension is 
consistent with the public interest. If an extension is granted, it is 
granted to all persons, and it is published in the Federal Register.


Sec. 190.321  Contents of written comments.

    All written comments must be in English. It is requested, but not 
required, that five copies be submitted. Any interested person should 
submit as part of written comments all material considered relevant to 
any statement of fact. Incorporation of material by reference should be 
avoided; however, where necessary, such incorporated material shall be 
identified by document title and page.


Sec. 190.323  Consideration of comments received.

    All timely comments and the recommendations of any technical 
advisory body established by statute for the purpose of reviewing the 
proposed rule concerned are considered before final action is taken on 
a rulemaking proposal. Late filed comments are considered so far as 
practicable.


Sec. 190.325  Additional rulemaking proceedings.

    The Administrator may initiate any further rulemaking proceedings 
that the Administrator finds necessary or desirable. For example, 
interested persons may be invited to make oral arguments, to 
participate in conferences between the Administrator or the 
Administrator's representative and interested persons, at which minutes 
of the conference are kept, to appear at informal hearings presided 
over by officials designated by the Administrator at which a transcript 
of minutes are kept, or participate in any other proceeding to assure 
informed administrative action and to protect the public interest.


Sec. 190.327  Hearings.

    (a) If a notice of proposed rulemaking does not provide for a 
hearing, any interested person may petition the Administrator for an 
informal hearing. The petition must be received by the Administrator 
not later than 20 days before expiration of the time stated in the 
notice. The filing of the petition

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does not automatically result in the scheduling of a hearing. A 
petition is granted only if the petitioner shows good cause for a 
hearing. If a petition for a hearing is granted, notice of the hearing 
is published in the Federal Register.
    (b) Sections 556 and 557 of title 5, United States Code, do not 
apply to hearings held under this part. Unless otherwise specified, 
hearings held under this part are informal, nonadversary fact-finding 
proceedings, at which there are no formal pleadings or adverse parties. 
Any regulation issued in a case in which an informal hearing is held is 
not necessarily based exclusively on the record of the hearing.
    (c) The Administrator designates a representative to conduct any 
hearing held under this subpart. The Chief Counsel designates a member 
of his or her staff to serve as legal officer at the hearing.


Sec. 190.329  Adoption of final rules.

    Final rules are prepared by representatives of the Office of 
Pipeline Safety and the Office of the Chief Counsel. The regulation is 
then submitted to the Administrator for consideration. If the 
Administrator adopts the regulation, it is published in the Federal 
Register, unless all persons subject to it are named and are personally 
served with a copy of it.


Sec. 190.331  Petitions for rulemaking.

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


Sec. 190.333  Processing of petition.

    (a) General. Unless the Associate Administrator or the Chief 
Counsel otherwise specifies, no public hearing, argument, or other 
proceeding is held directly on a petition before its disposition under 
this section.
    (b) Grants. If the Associate Administrator or the Chief Counsel 
determines that the petition contains adequate justification, he or she 
initiates rulemaking action under this subpart.
    (c) Denials. If the Associate Administrator or the Chief Counsel 
determines that the petition does not justify rulemaking, the petition 
is denied.
    (d) Notification. The Associate Administrator or the Chief Counsel 
will notify a petitioner, in writing, of the decision to grant or deny 
a petition for rulemaking.


Sec. 190.335  Petitions for reconsideration.

    (a) Except as provided in Sec. 190.339(d), any interested person 
may petition the Associate Administrator for reconsideration of any 
regulation issued under this subpart, or may petition the Chief Counsel 
for reconsideration of any procedural regulation issued under this 
subpart and contained in this subpart. It is requested, but not 
required, that three copies be submitted. The petition must be received 
not later than 30 days after publication of the rule in the Federal 
Register. Petitions filed after that time will be considered as 
petitions filed under Sec. 190.331. The petition must contain a brief 
statement of the complaint and an explanation as to why compliance with 
the rule is not practicable, is unreasonable, or is not in the public 
interest.
    (b) If the petitioner requests the consideration of additional 
facts, the petitioner must state the reason they were not presented to 
the Associate Administrator or the Chief Counsel within the prescribed 
time.
    (c) The Associate Administrator or the Chief Counsel does not 
consider repetitious petitions.
    (d) Unless the Associate Administrator or the Chief Counsel 
otherwise provides, the filing of a petition under this section does 
not stay the effectiveness of the rule.


Sec. 190.337  Proceedings on petitions for reconsideration.

    (a) The Associate Administrator or the Chief Counsel may grant or 
deny, in whole or in part, any petition for reconsideration without 
further proceedings, except where a grant of the petition would result 
in issuance of a new final rule. In the event that the Associate 
Administrator or the Chief Counsel determines to reconsider any 
regulation, a final decision on reconsideration may be issued without 
further proceedings, or an opportunity to submit comment or information 
and data as deemed appropriate, may be provided. Whenever the Associate 
Administrator or the Chief Counsel determines that a petition should be 
granted or denied, the Office of the Chief Counsel prepares a notice of 
the grant or denial of a petition for reconsideration, for issuance to 
the petitioner, and the Associate Administrator or the Chief Counsel 
issues it to the petitioner. The Associate Administrator or the Chief 
Counsel may consolidate petitions relating to the same rules.
    (b) It is the policy of the Associate Administrator or the Chief 
Counsel to issue notice of the action taken on a petition for 
reconsideration within 90 days after the date on which the regulation 
in question is published in the Federal Register, unless it is found 
impracticable to take action within that time. In cases where it is so 
found and the delay beyond that period is expected to be substantial, 
notice of that fact and the date by which it is expected that action 
will be taken is issued to the petitioner and published in the Federal 
Register.


Sec. 190.338  Appeals.

    (a) Any interested person may appeal a denial of the Associate 
Administrator or the Chief Counsel, issued under Sec. 190.333 or 
Sec. 190.337, to the Administrator.
    (b) An appeal must be received within 20 days of service of written 
notice to petitioner of the Associate

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Administrator's or the Chief Counsel's decision, or within 20 days from 
the date of publication of the decision in the Federal Register, and 
should set forth the contested aspects of the decision as well as any 
new arguments or information.
    (c) It is requested, but not required, that three copies of the 
appeal be submitted to the Administrator.
    (d) Unless the Administrator otherwise provides, the filing of an 
appeal under this section does not stay the effectiveness of any rule.


Sec. 190.339  Direct final rulemaking.

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

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