[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Rules and Regulations]
[Pages 70980-70987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24788]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 190
[Docket No. PHMSA-2016-0091; Amdt. No. 190-18]
RIN 2137-AF26
Pipeline Safety: Enhanced Emergency Order Procedures
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Interim final rule.
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SUMMARY: This interim final rule (IFR) establishes regulations
implementing the emergency order authority conferred on the Secretary
of Transportation (Secretary) by the ``Protecting our Infrastructure of
Pipelines and Enhancing Safety Act of 2016'' (PIPES Act). These
regulations are mandated by the PIPES Act and, in accordance with the
Act, PHMSA is establishing 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. By implementing
this statutory mandate, PHMSA will enhance its existing enforcement
authority to respond immediately to conditions or practices that exist
in a subset of, or across, the pipeline industry. This IFR 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. PHMSA is issuing
this IFR because the PIPES Act directs PHMSA to first issue temporary
regulations. However, the agency invites comments and will, if
appropriate, make changes to the IFR prior to the issuance of a final
rule, which the agency must
[[Page 70981]]
issue, by statute, no later than 270 days following enactment of the
PIPES Act.
DATES: Effective date: This interim final rule is effective October 14,
2016.
Comment date: Comments must be received by December 13, 2016.
ADDRESSES: You may submit comments by any of the following methods:
U.S. Government Regulations Web site: http://www.regulations.gov. Use the search tools to find this rulemaking and
follow the instructions for submitting comments.
U.S. Mail or private delivery service: Docket Operations,
U.S. Department of Transportation, West Building, Ground Floor, Room
W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., W12-140,
Washington, DC 20590-0001.
Fax: 1-202-493-2251.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, 20590 between 9:00 a.m. and 5:00 p.m., Monday through
Friday, except Federal holidays.
Instructions: You must include the agency name and docket number,
PHMSA-2016-0091 or the Regulatory Identification Number (2137-AF26) for
this rulemaking at the beginning of your comment. Note that all
comments received will be posted without change to the U.S. Government
Regulations Web site: http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act section of
this document.
FOR FURTHER INFORMATION CONTACT: James M. Pates, Assistant Chief
Counsel for Pipeline Safety, (202) 366-0331; Kristin T. L. Baldwin,
Senior Attorney, Office of Chief Counsel, (202) 366-6139, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Introduction
Section 16 of the PIPES Act amends 49 U.S.C. 60117 by establishing
a new emergency order authority for PHMSA in the area of pipeline
safety. See 49 U.S.C. 60117(o). The statutory mandate requires PHMSA to
develop procedures for the issuance of emergency orders to address
unsafe conditions or practices posing an imminent hazard. This
emergency order authority augments PHMSA's existing authority (e.g.,
Corrective Action Orders, Notices of Proposed Safety Order, Advisory
Bulletins, etc.) by allowing PHMSA to act quickly to address imminent
safety hazards that exist across a subset or larger group of owners or
operators.
PHMSA is initiating this rulemaking with an IFR without prior
notice of proposed rulemaking and opportunity to comment because
section 16 states that the Secretary of Transportation \1\ must issue
temporary regulations no later than 60 days (August 21, 2016) following
enactment of the PIPES Act. Furthermore, the Secretary must issue final
regulations no later than 270 days (March 19, 2017) following enactment
of the PIPES Act, at which time the temporary regulations will expire.
In order to comply with this section of the PIPES Act as quickly as
possible, PHMSA has determined that good cause exists for issuing an
IFR.
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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
Administrator for PHMSA. See 49 CFR 1.97(a).
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II. Background and Purpose
On June 22, 2016, the President signed the PIPES Act, Pubic Law
114-183, which amended the Pipeline Safety Laws in title 49 of the
statute, 130 Stat. 514. Congress enacted section 16 to address the
current gap in PHMSA's authority that prevents it from addressing
conditions or practices that extend beyond or affect more than a single
pipeline owner or operator and must be addressed immediately in order
to protect life, property or the environment. Section 60117(o) augments
PHMSA's existing enforcement authority to act quickly to address
imminent safety hazards that exist across a subset or larger group of
owners or operators. Section 60117(o) authorizes PHMSA to issue an
emergency order if it determines that a violation, 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 restrictions, prohibitions, and safety
measures on owners and operators of gas or hazardous liquid pipeline
facilities without prior notice or an opportunity for a hearing. This
regulatory authority allows PHMSA to impose conditions on a subset, or
a broader group, of owners/operators, facilities, or systems, in
accordance with the statutorily-mandated procedures outlined in this
IFR.
A. Current Authorities: Corrective Action Orders and Safety Orders
1. Corrective Action Orders
Section 60112 of title 49, United States Code, provides for the
issuance of a Corrective Action Order (CAO) to a pipeline facility
after notice and an opportunity for a hearing. Prior to issuing a CAO,
the Associate Administrator for Pipeline Safety must consider the
following factors, if relevant: (1) 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; (2) 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; (3) 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; (4) any
recommendation of the National Transportation Safety Board (NTSB)
issued in conjunction with any investigations conducted by the NTSB;
and (5) such other factors as the Associate Administrator may consider
appropriate. 49 CFR 190.233(e). After weighing these factors and
finding that a particular facility ``is or would be hazardous to life,
property, or the environment,'' see 49 CFR 190.233(a), 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 finds
that failure to issue the CAO 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. See 49 CFR 190.233(b). 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.
In all circumstances, CAOs are issued to and binding upon a single
owner, operator, or pipeline facility. PHMSA's statutory grant of
authority does not confer the ability to issue a CAO to more than one
owner or operator.
2. Safety Orders
PHMSA also utilizes a Notice of Proposed Safety Order (NOPSO) to
notify an operator that a particular pipeline facility has a condition
or conditions that pose a pipeline integrity risk to public safety,
property, or the environment. The NOPSO proposes
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specific measures that an operator must take to address the identified
risk. These may include 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 ones that must be
addressed over a longer period of time. Again, these orders may only be
issued to a single owner or operator and are not intended to address
imminent safety or environmental hazards.
B. Hazmat Emergency Order Authority
The Hazardous Materials Transportation Safety and Security
Reauthorization Act of 2005 (HMTSSRA) conferred on the Secretary
enhanced inspection authority for hazardous materials transportation,
investigation, and enforcement authority. Public Law 109-59 (Aug. 10,
2005). Prior to the enactment of HMTSSRA, DOT could obtain relief
against a hazmat safety violation posing an imminent hazard only
through a court order. After finding such a threat, the DOT operating
administration 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 before the hazardous transportation movement
was complete. In 2011, PHMSA published a final rule instituting
enhanced enforcement authority. (Hazardous Materials: Enhanced
Enforcement Authority Procedures, 76 FR 11570 (Mar. 2, 2011)). The
final rule included streamlined administrative remedies that materially
enhanced PHMSA's ability to prevent the unsafe movement of hazardous
materials. These procedures address the issuance of emergency orders to
abate unsafe conditions or practices posing an imminent hazard related
to the transportation of hazardous materials. The Emergency Order
Authority regulations contained in this IFR are modeled after the
enhanced authority conferred by HMTSSRA, to the extent required by the
PIPES Act.
C. Need for Enhanced Emergency Order Authority for Pipelines
While CAOs are an effective tool for the prompt evaluation and
correction of a particular operator's facilities or procedures and
advisory bulletins provide recommendations--but not enforceable
requirements--to a wider audience, no enforcement vehicle existed,
prior to adoption of the PIPES Act, that would allow PHMSA to address
immediate safety threats facing the wider industry. This new
enforcement tool will allow the Administrator to issue an emergency
order either prohibiting an unsafe condition or practice or imposing an
affirmative requirement when an unsafe condition, practice, or other
activity in the transportation of natural gas or hazardous liquids
poses a threat to life or significant harm to 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 to
address time-sensitive, safety conditions affecting multiple owners/
operators, facilities, or systems that pose a threat to life or
significant harm to property or the environment. Unlike a CAO issued to
a single operator, an emergency order would affect multiple or all
operators and/or pipeline systems that share a common characteristic or
condition. A variety of circumstances could warrant such an action,
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 a specific industry practice that 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 each circumstance presented, while observing the statutorily-
mandated due process procedures.
D. PIPES Act Requirements Related to the Emergency Order Authority
Under section 16 of the PIPES Act, PHMSA may 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. Section 16
defines an ``imminent hazard'' as ``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.''
The IFR requires that prior to issuance of an emergency order,
PHMSA must consider the impact that an emergency order will have on
public health and safety, the national or regional economy or national
security, and the ability of owners and operators of pipeline
facilities to maintain reliability and continuity of service to
customers. An aggrieved entity may file a petition for review, at which
time PHMSA must provide an opportunity for a review of the emergency
order under 5 U.S.C. 554 to determine whether the order should remain
in effect, be modified, or be terminated. If no agency decision with
respect to the petition is issued on or before the last day of the 30-
day period beginning on the date on which the petition is filed, the
order will cease to be effective, unless the Administrator determines
in writing, on or before the last day of such period, that the imminent
hazard still exists.
III. Basis for Good Cause Determination
Under the Administrative Procedure Act (APA) and the Federal
Pipeline Safety Laws, PHMSA may issue an IFR when there is ``good
cause'' to find that the notice[hyphen]and[hyphen]comment process would
be ``impracticable, unnecessary, or contrary to the public interest,''
and the agency incorporates that finding and a brief statement of the
reasons supporting the finding into the rulemaking document. See 5
U.S.C. 553(b)(3)(B), and 49 U.S.C. 60102(b)(6)(C). These statutes are
incorporated into PHMSA's pipeline safety regulations at 49 CFR
190.311, which allow PHMSA to modify aspects of an IFR in issuing the
final rule after receiving and reviewing public comments, as well as
any other relevant documents.
The good cause exception was made part of the APA to address
certain scenarios encountered by federal agencies where delay would
jeopardize their assigned missions to protect the public. Advance
notice and comment rulemaking procedures may be deemed impracticable
when an agency cannot both follow the notice-and-comment procedure and
still achieve its statutory objectives. The ``impracticability
exception'' to normal notice and comment procedures is an important
exception that is used where delay would do real harm.
In this instance, the PIPES Act established a 60-day timeline for
issuing these temporary or interim emergency-order regulations. This
statutory deadline makes notice and comment impracticable, and not in
the public interest. The final details of the PIPES Act were not known
to PHMSA until after the statute was enacted, and the PIPES Act only
affords PHMSA 60 days to issue temporary regulations implementing
emergency order authority. Thus, allotting time for notice
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and public comment (the standard comment period for a notice of
proposed rulemaking is 60 days) prior to issuing temporary regulations
would thwart PHMSA's ability to manage the schedule laid out by
Congress and impede the due and timely execution of the agency's
functions. Furthermore, section 16 of the PIPES Act directs a specific
regulatory outcome--establishing a standard for determining when an
emergency order is warranted, identifying particular factors for the
agency to consider, and directing the agency to follow specific
consultation requirements--for which PHMSA has no discretion.
IV. Summary of Proposals in This IFR
This IFR establishes interim procedures to implement the expanded
emergency order enforcement authority conferred by the PIPES Act. These
procedures will apply only when PHMSA determines that an unsafe
condition or practice is causing an imminent hazard. PHMSA may issue an
emergency order without advance notice or opportunity for a hearing.
The emergency order may impose emergency restrictions, prohibitions,
and safety measures on owners and operators of gas or hazardous liquid
pipeline facilities, but only to the extent necessary to abate the
imminent hazard.
Section-by-Section Analysis
PHMSA proposes to amend part 190 of title 49, Code of Federal
Regulations. Below is an analysis of the regulatory provisions.
Section 190.3 Definitions
This section contains a comprehensive set of definitions for part
190. PHMSA will add two definitions in order to clarify the meaning of
these important terms as they are used in the text of this IFR.
Emergency order means a written requirement imposing an emergency
restriction, prohibition, or safety measure on owners and operators of
gas or hazardous liquid pipeline facilities without prior notice or an
opportunity for a hearing.
As defined by statute, 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.''
Section 190.5 Service
This section contains procedures for effective service of
enforcement actions issued under Part 190 and is amended to
specifically exclude service of emergency orders from this section.
Service of emergency orders will be defined in Section 190.236
Emergency Orders.
Section 190.236 Emergency Orders
A new section 190.236 is added to authorize the Administrator to
issue emergency orders upon determining that an unsafe condition or
practice, or a combination of unsafe conditions and practices,
constitutes or is causing an imminent hazard. This tool is necessary to
abate conditions or other widespread circumstances that pose a
substantial likelihood that death, serious illness, severe personal
injury, or a substantial endangerment to health, property, or the
environment that may occur before the reasonably foreseeable completion
date of a formal proceeding begun to lessen the risk of such death,
illness, injury, or endangerment. The order must articulate a
sufficient factual basis to address the emergency situation warranting
prompt corrective action.
Paragraph (a) outlines the critical elements that must be
established in an emergency order prior to issuance. Principally, the
order must be in writing and describe the violation, condition or
practice that is causing the imminent hazard; specify the entities
subject to the order; enumerate the restrictions, prohibitions, or
safety measures imposed; explain the standards and procedures for
obtaining relief from the order; explain how the order is circumscribed
to abate the specific imminent hazard and why the authorities under
sections 60112 and 60117(1) are insufficient; and explain how certain
considerations were taken into account. In other words, the order must
be narrowly tailored to the discrete and specific safety hazard and
identify the corrective action(s) needed to remedy the hazard.
Paragraph (d) outlines how service of an emergency order will be
achieved. The Administrator will publish emergency orders in the
Federal Register as soon as practicable. In addition, OPS will post
emergency orders on its Web site. The emergency order will contain
filing and service requirements, including the address of the DOT
Docket Office and all persons to be served with petitions for review.
Section 190.237 Petitions for Review
A new section 190.237 is added to provide an affected party with
administrative due process rights to seek redress of an emergency
order, and thus, 49 CFR 190.237 sets forth the procedures for filing a
petition for administrative review of an emergency order. The petition:
(1) Must be in writing; (2) specifically state the section(s) of the
emergency order being appealed; (3) include all information and
arguments in support of the appellant's petition; and (4) follow
appropriate service procedures. The petitioner may request a formal or
an informal hearing. If a petitioner requests review of the order under
section 554 of title 5, the party must detail the material facts in
dispute giving rise to the hearing request. This process will allow
PHMSA and the aggrieved entity to present evidence and argument in
relation to the emergency order. If the petitioner does not request a
formal hearing, the petition will be handled informally through the
Office of Pipeline Safety unless the Associate Administrator determines
that there is a reasonable basis for handling the petition through the
formal hearing process.
Paragraphs (c) sets out the Associate Administrator for Pipeline
Safety's responsibilities. These include: (1) Upon receipt of a
petition for review of an emergency order that includes a formal
hearing request and states material facts in dispute, immediately
assigning the petition to the Office of Hearings, DOT; (2) for a
petition for review of an emergency order that does not include a
formal hearing request or fails to state material facts in dispute,
issuing an administrative decision on the merits within 30 days of
receipt of the petition (the Associate Administrator's decision will
constitute the agency's final decision); (3) if more than one petition
for review of an emergency order is received, and those orders are
substantially similar, the Associate Administrator may consolidate the
petitions for the purposes of complying with 49 CFR 190.237; and (4) in
the event that a petitioner does not request a formal hearing, the
Associate Administrator may reassign the petition to the Office of
Hearings, DOT, when there is a reasonable basis for the reassignment.
Paragraphs (d) through (k) set out the administrative hearing
procedures that the Department's Office of Hearings would employ. Upon
receiving the petition from PHMSA, the Chief Administrative Law Judge
assigns it to an Administrative Law Judge (ALJ), who schedules and
conducts an ``on the record'' hearing under 5 U.S.C. 554. Given the
statutory language of the PIPES Act, a petitioner must be afforded
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an opportunity for a formal hearing that addresses the merits of a
petition to ensure that a record is created in a proceeding that forms
the basis for the final agency decision and judicial review, if
necessary.
Paragraph (d)(1) provides that an ALJ may administer oaths and
affirmations, issue subpoenas as authorized by PHMSA's regulations,
enable the parties to engage in discovery, and conduct settlement
conferences and hearings to resolve disputed factual issues. PHMSA
expects ALJs to conduct efficient and expeditious proceedings,
including controlling discovery actions, to enable the parties to
obtain relevant information and present material arguments at a hearing
within the time parameters established.
Paragraph (g) requires the ALJ to issue a report and recommendation
when the record is closed. The decision must contain factual findings
and legal conclusions based on legal authorities and evidence presented
on the record. Critically, the decision must be issued within 30 days
after the Chief Counsel receives the petition.
PHMSA notes that Congress mandated that the Secretary must decide a
petition for review within 30 days of its receipt, unless the Secretary
determines in writing that an imminent hazard continues to exist,
extending the order, pending review of the petition. See 49 U.S.C.
60117(o)(5). Therefore, paragraph (j) provides that the emergency order
will no longer be effective if no agency decision has been rendered on
the petition within 30 days of the receipt of the petition, unless the
Administrator determines in writing that the imminent hazard continues
to exist. The order would then remain in effect pending the disposition
of the petition unless stayed or modified by the Administrator. PHMSA
maintains that this provision is necessary to ensure that the order is
extended until the imminent hazard is abated.
Paragraph (h) provides that an aggrieved party may file a petition
for reconsideration of the ALJ's report and recommendation with the
Associate Administrator for Pipeline Safety within one day of the
issuance of the decision. The Associate Administrator is charged with
issuing a final agency decision on the petition for reconsideration
within three days of service of the final pleading, but no later than
30 days after receipt of the original petition for review.
Judicial review would be available in an appropriate District Court
and afforded expedited consideration. All parties should note that the
filing of a petition will not stay or modify the force and effect of
final agency decision unless otherwise ordered.
Paragraph (k) specifies the computation of time in the
adjudications process.
Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Interim Final Rule
PHMSA's general authority to publish this IFR 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 IFR is a non-significant regulatory action under section 3(f)
of Executive Order 12866, 58 FR 51735 (Oct. 4, 1993) and 13563, 76 FR
3821 (Jan. 21, 2011), and; therefore, was not reviewed by the Office of
Management and Budget (OMB). This IFR is non-significant under the
Regulatory Policies and Procedures of the Department of Transportation.
44 FR 11034 (Feb. 26, 1979).
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 IFR 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 13132
This IFR has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). 64 FR
43255 (Aug. 10, 1999). This IFR 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 IFR 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 IFR
will not have a significant impact on a substantial number of small
entities.
D. Paperwork Reduction Act
PHMSA has analyzed this IFR 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 IFR
contains no new information collection requirements subject to the PRA.
However, following issuance of an emergency order, PHMSA may require
the issuance of status updates, reports, or other information. PHMSA
seeks comment on the potential paperwork burdens associated with this
rulemaking.
E. Executive Order 13175
PHMSA has analyzed this IFR 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
IFR will not significantly or uniquely affect
[[Page 70985]]
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 IFR 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 IFR 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
The proposal in this IFR would not impose unfunded mandates under
the Unfunded Mandates Act of 1995. Pub. L. 104-4 (Dec. 4, 1995). The
IFR 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 IFR.
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 IFR addresses a Congressional mandate, we have 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 is able to 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, PHMSA amends 49 CFR
Subchapter C as follows:
PART 190--PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES
0
1. The authority citation for part 190 is revised to read as follows:
Authority: 49 U.S.C. 60101 et seq.
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2. In Sec. 190.3, new definitions for ``Emergency Order'' and
``Imminent Hazard'' are added in alphabetical order to read as follows:
Sec. 190.3 Definitions.
* * * * *
Emergency order means a written order imposing restrictions,
prohibitions, or safety measures on affected entities.
* * * * *
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
administrative proceeding begun to lessen the risk of such death,
illness, injury or endangerment.
* * * * *
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3. In Sec. 190.5, paragraph (a) is revised to read as follows:
Sec. 190.5 Service.
(a) Each order, notice, or other document required to be served
under this part, with the exception of emergency orders under Sec.
190.236, 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.
* * * * *
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4. Add Sec. 190.236 to subpart B to read as follows:
Sec. 190.236 Emergency orders.
(a) Determination of imminent hazard. When the Administrator
determines that a violation of a provision of the Federal pipeline
safety laws, or a regulation or order prescribed under those laws, 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. The basis for
any action taken under this section will be set forth in writing that
describes:
(1) The violation, condition, or practice that constitutes or is
causing the imminent hazard;
(2) Those 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;
(6) How the considerations listed in paragraph (c) of this section
were taken into account.
(b) Consultation requirement. In evaluating the considerations
under paragraph (c), the Administrator shall consult as the
Administrator determines appropriate, with appropriate Federal
agencies, State agencies, and other entities knowledgeable in pipeline
safety or operations.
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(c) Considerations. Prior to issuing an emergency order, the
Administrator must consider the following:
(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 result of consultations with appropriate Federal agencies,
State agencies, and other entities knowledgeable in pipeline safety or
operations.
(d) Service. The Administrator will publish emergency orders in the
Federal Register, as soon as practicable upon issuance. In addition,
OPS will post emergency orders on its Web site. The emergency order
will contain filing and service requirements, including the address of
DOT Docket Operations and of all persons to be served with petitions
for review.
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5. Add Sec. 190.237 to subpart B to read as follows:
Sec. 190.237 Petitions for review.
(a) Requirements. An entity 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 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 amended or rescinded and include all information,
evidence and arguments in support thereof;
(3) State whether a formal hearing in accordance with 5 U.S.C. 554
is requested, and, if so, the material facts in dispute giving rise to
the request for a hearing; and,
(4) Be filed and served in accordance with paragraph (f) of this
section.
(b) Response to the petition for review. An attorney designated by
the Office of Chief Counsel may file and serve, in accordance with
paragraph (f) of this section, a response, including appropriate
pleadings, within five days of receipt of the petition by the Chief
Counsel.
(c) Associate Administrator for Pipeline Safety Responsibilities--
(1) Hearing requested. Upon receipt of a petition for review of an
emergency order that includes a formal hearing request and states
material facts in dispute, the Associate Administrator for Pipeline
Safety will immediately assign the petition to the Office of Hearings,
DOT. Unless the Associate Administrator for Pipeline Safety issues an
order stating that the petition fails to set forth material facts in
dispute and will be decided under paragraph (c)(2) of this section, a
petition for review including a formal hearing request will be deemed
assigned to the Office of Hearings three days after the Associate
Administrator for Pipeline Safety receives it.
(2) No hearing requested. For a petition for review of an emergency
order that does not include a formal hearing request or fails to state
material facts in dispute, the Associate Administrator for Pipeline
Safety must issue an administrative decision on the merits within 30
days of receipt of the petition. The Associate Administrator for
Pipeline Safety's decision constitutes the agency's final decision.
(3) Consolidation. If the Associate Administrator for Pipeline
Safety receives more than one petition for review of an emergency
order, and those petitions share common issues of law or fact, the
Associate Administrator for Pipeline Safety may consolidate those
petitions for the purposes of complying with this section.
(4) Agency authority to request a formal hearing. In the event that
a petitioner does not request a formal hearing, the Associate
Administrator for Pipeline Safety may still reassign the petition to
the Office of Hearings, DOT, when a reasonable basis exists for the
reassignment.
(d) Hearings. Formal hearings must be conducted by an
Administrative Law Judge assigned by the Chief Administrative Law Judge
of the Office of Hearings. The Administrative Law Judge may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by the appropriate agency
regulations (49 CFR 190.7 and 49 U.S.C. 60117);
(3) Adopt the relevant Federal Rules of Civil Procedure for the
United States District Courts for the procedures 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.
(e) 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.
(f) Filing and service. (1) Each petition, pleading, motion,
notice, order, or other document submitted in connection with an order
issued under this subpart 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 Web site, http://www.regulations.gov. The emergency order must state the above filing
requirements and the address of DOT Docket Operations.
(2) Service. Each document filed in accordance with paragraph
(f)(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).
(iii) If the petition for review requests a formal hearing, the
Chief Administrative Law Judge, U.S. Department of Transportation,
Office of Hearings, M-20, Room E12-320, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (facsimile: 202-366-7536).
(iv) Service must be made personally, by commercial delivery
service, or by electronic means if consented to in writing by the party
to be served, except as otherwise provided herein. The emergency order
must state all relevant service requirements and list the persons to be
served and may be updated as necessary.
(3) 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.
(4) If applicable, service upon a person's duly authorized
representative,
[[Page 70987]]
agent for service, or an organization's president constitutes service
upon that person.
(g) Report and recommendation. The Administrative Law Judge must
issue a report and recommendation 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 of Pipeline Safety.
(h) Petition for reconsideration. (1) A party aggrieved by the
Administrative Law Judge's report and recommendation, may file a
petition for reconsideration with the Associate Administrator of
Pipeline Safety within one day of service of the report and
recommendation. The opposing party may file a response to the petition
for reconsideration within one day of service of a petition for
reconsideration.
(2) The Associate Administrator of Pipeline Safety must issue a
final agency decision within three days of service of the final
pleading outlined in paragraph (h)(1) of this section, but no later
than 30 days after receipt of the original petition for review.
(3) The Associate Administrator of Pipeline Safety's decision on
the merits of a petition for reconsideration constitutes the agency's
final decision.
(i) Judicial review. After the issuance of a final agency decision
pursuant to paragraph (c)(2) or (h)(3) of this section, or the issuance
of a written determination by the Administrator pursuant to paragraph
(j) of this section, a person subject to, and aggrieved by, an
emergency order issued under section 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 paragraph
(c)(2) or (h)(3) of this section, or the written determination under
paragraph (j) of this section, unless stayed or modified by the
Administrator.
(j) Expiration of order. If the Associate Administrator of Pipeline
Safety, or the Administrative Law Judge, where appropriate, has not
disposed of the petition for review within 30 days of receipt, the
emergency order will cease to be effective unless the Administrator
issuing the emergency order determines, in writing, that the imminent
hazard providing a basis for the emergency order continues to exist.
(k) Time. In computing any period of time prescribed by this part
or by an order issued by the Administrative Law Judge, the day of
filing of the 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
period runs until the end of the next day which is not one of the
aforementioned days.
Issued in Washington, DC, on October 6, 2016, under authority
delegated in 49 CFR 1.97.
Marie Therese Dominguez,
Administrator.
[FR Doc. 2016-24788 Filed 10-13-16; 8:45 am]
BILLING CODE 4910-60-P