[Federal Register Volume 64, Number 155 (Thursday, August 12, 1999)]
[Proposed Rules]
[Pages 43972-43974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20816]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 190

[Docket No. RSPA-98-4284; Notice 1]
RIN 2137-AD22


Pipeline Safety Enforcement Procedures

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: We are proposing to revise our pipeline safety enforcement 
procedures concerning alleged violations for which persons agree to 
proposed compliance orders or pay proposed civil penalties without 
contesting the allegations. At present, if a person responds to a 
notice of probable violation (NOPV) by paying a civil penalty proposed 
for an alleged violation, we consider the allegation uncontested and 
find that the person committed the violation. The violation then counts 
as a prior offense in determining the amount of any future civil 
penalty assessment against that person. We are proposing to adopt 
identical procedures for NOPV responses that agree to proposed 
compliance orders without contesting the alleged violations. Further, 
we are proposing to stop preparing final orders for alleged violations 
for which persons agree to proposed compliance orders or pay proposed 
civil penalties without contesting the allegations. The proposed rule 
changes would unify and streamline the handling of uncontested alleged 
violations in enforcement cases.

DATES: Persons interested in submitting written comments on this notice 
must do so by October 12, 1999. Late filed comments will be considered 
so far as practicable.

ADDRESSES: You may submit written comments by mailing or delivering an 
original and two copies to the Dockets Facility, U.S. Department of 
Transportation, Room PL-401, 400 Seventh Street, SW, Washington, DC 
20590-0001. The Dockets Facility is open from 10:00 a.m. to 5:00 p.m., 
Monday through Friday, except on Federal holidays when the facility is 
closed. Or you may submit written comments to the docket 
electronically. To do so, log on to the following Internet Web address: 
http://dms.dot.gov. Click on ``Help & Information'' for instructions on 
how to file a document electronically. All written comments should 
identify the docket and notice numbers stated in the heading of this 
notice. Anyone who wants confirmation of mailed comments must include a 
self-addressed stamped postcard.

FOR FURTHER INFORMATION CONTACT: Linda Daugherty at (202) 366-4577 or 
[email protected]. Comments may be read on the internet at 
http://dms.dot.gov. General information about RSPA's pipeline safety 
program can be obtained at http://ops.dot.gov.

SUPPLEMENTARY INFORMATION:

Response Options

    Under the pipeline safety enforcement procedures in 49 CFR Part 
190, in responding to an NOPV (Sec. 190.207), a person may decide not 
to contest an alleged violation. To do so, the person, or 
``respondent,'' either pays a proposed civil penalty 
(Sec. 190.209(a)(1)) or agrees to a proposed compliance order 
(Sec. 190.209(b)(1)), or both when applicable.
    If a proposed civil penalty is paid, we then ``close the case with 
prejudice to the respondent,'' as Sec. 190.209(a)(1) provides. Such 
closure means that we consider the alleged violation to have been 
committed by the respondent, and that we will treat the violation as a 
``prior offense'' under Sec. 190.225(c) in determining the amount of 
any future assessment against the respondent (see 53 FR 1634; Jan. 21, 
1988).
    In contrast, the procedures do not provide for a similar closure 
when a person agrees to a proposed compliance order without contesting 
the alleged violation. This inconsistency may be confusing when an NOPV 
proposes both a civil penalty and a compliance order for the same 
alleged violation.

[[Page 43973]]

    Therefore, we are proposing to revise Sec. 190.209 to treat 
uncontested responses involving civil penalty payments and compliance 
order agreements alike. The separate lists of response options now 
stated in Sec. 190.209(a) and Sec. 190.209(b) would be combined in 
proposed Sec. 190.209(a). Proposed Sec. 190.209(a)(1) would clarify 
that by paying a proposed civil penalty or agreeing to a proposed 
compliance order, the respondent elects not to contest the underlying 
alleged violation. The phrase ``close the case with prejudice to the 
respondent'' would be replaced by a fuller explanation, under proposed 
Sec. 190.209(b), of the consequences of paying a proposed civil penalty 
or agreeing to a proposed compliance order without contesting the 
underlying alleged violation.
    A separate option under present Sec. 190.209(b) to request 
execution of a consent order would be removed as unnecessary. Under 
Sec. 192.219, a respondent may request execution of a consent order at 
any time before issuance of a compliance order. And a consent order may 
be requested in connection with any response that contests an alleged 
violation.
    The present paragraph (c) in Sec. 190.209 is published incorrectly 
as the third item in a list instead of as an independent paragraph. 
This paragraph also references a previously deleted paragraph (c). So 
we are proposing to revise the paragraph structure of Sec. 190.209 for 
clarity and to omit the obsolete reference in paragraph (c).

Final Order

    Under Sec. 190.213, we now prepare a final order in every 
enforcement case. Each order addresses each alleged violation in the 
case. Based on the evidence presented, the order states our findings on 
whether a violation has been committed as alleged, and if a sanction is 
to be imposed, states the amount of the civil penalty or terms of the 
compliance order.
    For alleged violations a respondent decides not to contest by 
paying a proposed civil penalty or agreeing to a proposed compliance 
order, or both, we believe preparation of a separate document called a 
final order is a redundant administrative step.
    Proposed Sec. 190.209(b)(3) would eliminate the unnecessary 
paperwork of preparing a final order for alleged violations a 
respondent decides not to contest by paying a proposed civil penalty or 
agreeing to a proposed compliance order, or both. A conforming change 
to Sec. 190.213(a) also would be made. Despite the lack of a separate 
document called ``Final Order,'' if an operator did not comply with the 
terms of an agreed to compliance order, RSPA could enforce the 
agreement by assessing civil penalties or by obtaining a court 
injunction.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Policies and Procedures

    The Office of Management and Budget (OMB) does not consider this 
proposed rulemaking to be a significant regulatory action under Section 
3(f) of Executive Order 12866 (58 FR 51735; October 4, 1993). 
Therefore, OMB has not reviewed this rulemaking document. DOT does not 
consider this proposed rulemaking significant under its regulatory 
policies and procedures (44 FR 11034; February 26, 1979). Because the 
proposed rulemaking should enhance governmental efficiency without cost 
to the regulated industry, a further regulatory evaluation is not 
warranted.

B. Regulatory Flexibility Act

    The proposed rule changes would not impose additional requirements 
on pipeline operators, including small entities that operate regulated 
pipelines. Based on the facts available about the anticipated impact of 
this proposed rulemaking, I certify, pursuant to Section 605 of the 
Regulatory Flexibility Act (5 U.S.C. 605), that this proposed 
rulemaking would not have a significant economic impact on a 
substantial number of small entities.

C. Executive Order 13084

    The proposed rules have been analyzed in accordance with the 
principles and criteria contained in Executive Order 13084, 
``Consultation and Coordination with Indian Tribal Governments.'' 
Because the proposed rules would not significantly or uniquely affect 
the Indian tribal governments, the funding and consultation 
requirements of Executive Order 13084 do not apply.

D. Paperwork Reduction Act

    This proposed rulemaking contains no information collection that is 
subject to review by OMB under the Paperwork Reduction Act of 1995.

E. Unfunded Mandates Reform Act of 1995

    This proposed rulemaking would not impose unfunded mandates under 
the Unfunded Mandates Reform Act of 1995. It would not result in costs 
of $100 million or more to either State, local, or tribal governments, 
in the aggregate, or to the private sector, and would be the least 
burdensome alternative that achieves the objective of the rule.

F. Executive Order 12612

    This action would not have substantial direct effects on states, on 
the relationship between the Federal Government and the states, or on 
the distribution of power and responsibilities among the various levels 
of Government. Therefore, in accordance with Executive Order 12612 (52 
FR 41685; October 30, 1987), RSPA has determined that the final rule 
does not have sufficient federalism implications to warrant preparation 
of a Federalism Assessment.

G. Impact on Business Processes and Computer Systems

    Many computers that use two digits to keep track of dates will, on 
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900. 
This glitch, the Year 2000 problem, could cause computers to stop 
running or to start generating erroneous data. The Year 2000 problem 
poses a threat to the global economy in which Americans live and work. 
With the help of the President's Council on Year 2000 Conversion, 
Federal agencies are reaching out to increase awareness of the problem 
and to offer support. We do not want to impose new requirements that 
would mandate business process changes when the resources necessary to 
implement those requirements would otherwise be applied to the Year 
2000 Problem.
    This notice of proposed rulemaking does not propose business 
process changes or require modifications to computer systems. Because 
this notice apparently does not affect the ability of organizations to 
respond to the Year 2000 problem, we do not intend to delay the 
effectiveness of the rule changes proposed in this notice.

List of Subjects in 49 CFR Part 190

    Enforcement procedures, Penalty, Pipeline safety.

    In consideration of the foregoing, we propose to amend 49 CFR part 
190 as follows:
    1. The authority citation for Part 190 continues to read as 
follows:

    Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 60101 et seq.; 
Sec. 212-213, Pub. L. 104-121, 110 Stat. 857; 49 CFR 1.53.

    2. Section 190.209 is be revised to read as follows:


Sec. 190.209  Response options.

    (a) Within 30 days of receipt of a notice of probable violation, 
the respondent shall respond to the allegations of violation and 
proposed

[[Page 43974]]

sanctions in the following way to the Regional Director who issued the 
notice:
    (1) Elect not to contest an allegation by paying the proposed civil 
penalty or agreeing to the proposed compliance order applicable to the 
allegation;
    (2) Submit written explanations, information, or other materials 
that answer the allegations or seek mitigation of the proposed civil 
penalty or proposed compliance order; or
    (3) Request a hearing under Sec. 190.211.
    (b) If a respondent responds to an alleged violation under 
paragraph (a)(1) of this section--
    (1) The allegation automatically becomes an agency determination 
that the respondent has committed the violation as alleged, allowing 
OPS to consider the violation as a prior offense in assessing civil 
penalties in the future;
    (2) The proposed civil penalty applicable to the violation is 
assessed, or the terms of the proposed compliance order applicable to 
the violation are imposed, without further action; and
    (3) The finding of violation, assessment of civil penalty, or 
compliance terms imposed under Sec. 190.209(b)(1) and (2), as evidenced 
by the notice of probable violation and the respondent's response, 
constitute a final order under 49 U.S.C. 60101 et seq.
    (c) Failure of the respondent to respond in accordance with 
paragraph (a) of this section constitutes a waiver of the right to 
contest the allegations in the notice of probable violation and 
authorizes the Associate Administrator, OPS, without further notice to 
the respondent, to find facts to be as alleged in the notice of 
probable violation and to issue a final order under Sec. 190.213.
    3. Section 190.213(a) is revised to read as follows:


Sec. 190.213  Final order.

    (a) Except with respect to violations resolved under 
Sec. 190.209(b), after a hearing under Sec. 190.211 or, if no hearing 
has been requested, after expiration of the 30 day response period 
prescribed in Sec. 190.209, the case file of an enforcement proceeding 
commenced under Sec. 190.207 is forwarded to the Associate 
Administrator, OPS, for issuance of a final order.
* * * * *

    Issued in Washington, DC on August 6, 1999.
Richard B. Felder,
Associate Administrator for Pipeline Safety.
[FR Doc. 99-20816 Filed 8-11-99; 8:45 am]
BILLING CODE 4910-60-P