Pipeline Safety Rulemaking Procedures

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to eliminate or revise those regulations that are outdated or in need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

[[Page 50910]]

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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