Pipeline Safety Enforcement Procedures

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