49 CFR Part 190 — Pipeline Safety Enforcement and Regulatory Procedures

PART 190—PIPELINE SAFETY ENFORCEMENT AND REGULATORY PROCEDURES Authority: 33 U.S.C. 1321(b); 49 U.S.C. 60101 et seq. Source: 45 FR 20413, Mar. 27, 1980, unless otherwise noted. Editorial Note: Nomenclature changes to part 190 appear at 78 FR 58908, Sept. 25, 2013. Subpart A—General § 190.1 Purpose and scope. (a) This part prescribes procedures used by the Pipeline and Hazardous Materials Safety Administration in carrying out duties regarding pipeline safety under 49 U.S.C. 60101 et seq. (b) This subpart defines certain terms and prescribes procedures that are applicable to each proceeding described in this part. [45 FR 20413, Mar. 27, 1980, as amended by Amdt. 190-6, 61 FR 18512, Apr. 26, 1996; 70 FR 11137, Mar. 8, 2005; Amdt. 190-16, 78 FR 58908, Sept. 25, 2013] § 190.3 Definitions. As used in this part: Administrator Associate Administrator Chief Counsel Day Emergency order Formal hearing Hearing Imminent hazard New and novel technologies OPS Operator Person Presiding Official Regional Director Respondent PHMSA State [Amdt. 190-6, 61 FR 18513, Apr. 26, 1996, as amended at 68 FR 11749, Mar. 12, 2003; 70 FR 11137, Mar. 8, 2005; Amdt. 190-15, 74 FR 62505, Nov. 30, 2009; Amdt. 190-16, 78 FR 58908, Sept. 25, 2013; Amdt. 190-18, 81 FR 70985, Oct. 14, 2016; Amdt. 190-19, 82 FR 7995, Jan. 23, 2017; Amdt. 190-21, 84 FR 52026, Oct. 1, 2019; Amdt. 190-23, 90 FR 28046, July 1, 2025] § 190.5 Service. (a) Each order, notice, or other document required to be served under this part, 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. (b) Service upon a person's duly authorized representative or agent constitutes service upon that person. (c) Service by certified mail or overnight courier is complete upon mailing. Service by electronic transmission is complete upon transmission and acknowledgement of receipt. An official receipt for the mailing from the U.S. Postal Service or overnight courier, or a facsimile or other electronic transmission confirmation, constitutes prima facie evidence of service. [45 FR 20413, Mar. 27, 1980, as amended at 73 FR 16567, Mar. 28, 2008; Amdt. 190-16, 78 FR 58909, Sept. 25, 2013; Amdt. 190-18, 81 FR 70985, Oct. 14, 2016; Amdt. 190-21, 84 FR 52026, Oct. 1, 2019] § 190.7 Subpoenas; witness fees. (a) The Administrator, Chief Counsel, or the official designated by the Administrator to preside over a hearing convened in accordance with this part, may sign and issue subpoenas individually on his or her own initiative at any time, including pursuant to an inspection or investigation, or upon request and adequate showing by a participant to an enforcement proceeding that the information sought will materially advance the proceeding. (b) A subpoena may require the attendance of a witness, or the production of documentary or other tangible evidence in the possession or under the control of person served, or both. (c) A subpoena may be served personally by any person who is not an interested person and is not less than 18 years of age, or by certified mail. (d) Service of a subpoena upon the person named in the subpoena is achieved by delivering a copy of the subpoena to the person and by paying the fees for one day's attendance and mileage, as specified by paragraph (g) of this section. When a subpoena is issued at the instance of any officer or agency of the United States, fees and mileage need not be tendered at the time of service. Delivery of a copy of a subpoena and tender of the fees to a natural person may be made by handing them to the person, leaving them at the person's office with a person in charge, leaving them at the person's residence with a person of suitable age and discretion residing there, by mailing them by certified mail to the person at the last known address, or by any method whereby actual notice is given to the person and the fees are made available prior to the return date. (e) When the person to be served is not a natural person, delivery of a copy of the subpoena and tender of the fees may be achieved by handing them to a designated agent or representative for service, or to any officer, director, or agent in charge of any office of the person, or by mailing them by certified mail to that agent or representative and the fees are made available prior to the return date. (f) The original subpoena bearing a certificate of service shall be filed with the official having responsibility for the proceeding in connection with which the subpoena was issued. (g) A subpoenaed witness shall be paid the same fees and mileage as would be paid to a witness in a proceeding in the district courts of the United States. The witness fees and mileage shall be paid by the person at whose instance the subpoena was issued. (h) Notwithstanding the provisions of paragraph (g) of this section, and upon request, the witness fees and mileage may be paid by the PHMSA if the official who issued the subpoena determines on the basis of good cause shown, that: (1) The presence of the subpoenaed witness will materially advance the proceeding; and (2) The person at whose instance the subpoena was issued would suffer a serious hardship if required to pay the witness fees and mileage. (i) Any person to whom a subpoena is directed may, prior to the time specified therein for compliance, but in no event more than 10 days after the date of service of such subpoena, apply to the official who issued the subpoena, or if the person is unavailable, to the Administrator to quash or modify the subpoena. The application shall contain a brief statement of the reasons relied upon in support of the action sought therein. The Administrator, or this issuing official, as the case may be, may: (1) Deny the application; (2) Quash or modify the subpoena; or (3) Condition a grant or denial of the application to quash or modify the subpoena upon the satisfaction of certain just and reasonable requirements. The denial may be summary. (j) Upon refusal to obey a subpoena served upon any person under the provisions of this section, the PHMSA may request the Attorney General to seek the aid of the U. S. District Court for any District in which the person is found to compel that person, after notice, to appear and give testimony, or to appear and produce the subpoenaed documents before the PHMSA, or both. [45 FR 20413, Mar. 27, 1980, as amended by Amdt. 190-6, 61 FR 18513, Apr. 26, 1996; Amdt. 190-7, 63 FR 7722, Feb. 17, 1998; 70 FR 11137, Mar. 8, 2005; Amdt. 190-16, 78 FR 58909, Sept. 25, 2013] § 190.9 Petitions for finding or approval. (a) In circumstances where a rule contained in parts 192, 193 and 195 of this chapter authorizes the Administrator to make a finding or approval, an operator may petition the Administrator for such a finding or approval. (b) Each petition must refer to the rule authorizing the action sought and contain information or arguments that justify the action. Unless otherwise specified, no public proceeding is held on a petition before it is granted or denied. After a petition is received, the Administrator or participating state agency notifies the petitioner of the disposition of the petition or, if the request requires more extensive consideration or additional information or comments are requested and delay is expected, of the date by which action will be taken. (1) For operators seeking a finding or approval involving intrastate pipeline transportation, petitions must be sent to: (i) The State agency certified to participate under 49 U.S.C. 60105. (ii) Where there is no state agency certified to participate, the Administrator, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590. (2) For operators seeking a finding or approval involving interstate pipeline transportation, petitions must be sent to the Administrator, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE, Washington, DC 20590. (c) All petitions must be received at least 90 days prior to the date by which the operator requests the finding or approval to be made. (d) The Administrator will make all findings or approvals of petitions initiated under this section. A participating state agency receiving petitions initiated under this section shall provide the Administrator a written recommendation as to the disposition of any petition received by them. Where the Administrator does not reverse or modify a recommendation made by a state agency within 10 business days of its receipt, the recommended disposition shall constitute the Administrator's decision on the petition. [Amdt. 190-5, 59 FR 17280, Apr. 12, 1994, as amended by Amdt. 190-6, 61 FR 18513, Apr. 26, 1996; 70 FR 11137, Mar. 8, 2005; 73 FR 16566, Mar. 28, 2008] § 190.11 Availability of informal guidance and interpretive assistance. (a) Availability of telephonic and Internet assistance. http://phmsa.dot.gov/pipeline. (b) Availability of written interpretations. pipeline_interp_submittal@dot.gov. (c) Public notice of interpretations. [Amdt. 190-16, 78 FR 58909, Sept. 25, 2013, as amended by Amdt. 190-24, 91 FR 21975, Apr. 24, 2026; Amdt. 190-27, 91 FR 21967, Apr. 24, 2026] § 190.13 Declaratory orders. (a) In general. (b) Filing of petition. (c) Notice of petition. Federal Register (d) Issuance of a declaratory order. (e) Denial of petition. (f) Petitions for reconsideration; finality; judicial review. [Amdt. No. 190-25, 91 FR 21970, Apr. 24, 2026] Subpart B—Enforcement § 190.201 Purpose and scope. (a) This subpart describes the enforcement authority and sanctions exercised by the Associate Administrator for achieving and maintaining pipeline safety and compliance under 49 U.S.C. 60101 et seq., (b) A person who is the subject of action pursuant to this subpart may be represented by legal counsel at all stages of the proceeding. [45 FR 20413, Mar. 27, 1980, as amended by Amdt. 190-6, 61 FR 18513, Apr. 26, 1996; Amdt. 190-16, 78 FR 58909, Sept. 25, 2013] § 190.203 Inspections and investigations. (a) Officers, employees, or agents authorized by the Associate Administrator for Pipeline Safety, PHMSA, upon presenting appropriate credentials, are authorized to enter upon, inspect, and examine, at reasonable times and in a reasonable manner, the records and properties of persons to the extent such records and properties are relevant to determining the compliance of such persons with the requirements of 49 U.S.C. 60101 et seq., (b) Inspections are ordinarily conducted pursuant to one of the following: (1) Routine scheduling by the Regional Director of the Region in which the facility is located; (2) A complaint received from a member of the public; (3) Information obtained from a previous inspection; (4) Report from a State Agency participating in the Federal Program under 49 U.S.C. 60105; (5) Pipeline accident or incident; or (6) Whenever deemed appropriate by the Associate Administrator. (c) If the Associate Administrator or Regional Director believes that further information is needed to determine appropriate action, the Associate Administrator or Regional Director may notify the pipeline operator in writing that the operator is required to provide specific information within 30 days from the time the notification is received by the operator, unless otherwise specified in the notification. The notification must provide a reasonable description of the specific information required. An operator may request an extension of time to respond by providing a written justification as to why such an extension is necessary and proposing an alternative submission date. A request for an extension may ask for the deadline to be stayed while the extension is considered. General statements of hardship are not acceptable bases for requesting an extension. (d) To the extent necessary to carry out the responsibilities under 49 U.S.C. 60101 et seq., (e) If a representative of the U.S. Department of Transportation inspects or investigates an accident or incident involving a pipeline facility, the operator must make available to the representative all records and information that pertain to the event in any way, including integrity management plans and test results. The operator must provide all reasonable assistance in the investigation. Any person who obstructs an inspection or investigation by taking actions that were known or reasonably should have been known to prevent, hinder, or impede an investigation without good cause will be subject to administrative civil penalties under this subpart. (f) When OPS determines that the information obtained from an inspection or from other appropriate sources warrants further action, OPS may initiate one or more of the enforcement proceedings prescribed in this subpart. [45 FR 20413, Mar. 27, 1980, as amended by Amdt. 190-3, 56 FR 31090, July 9, 1991; Amdt. 190-6, 61 FR 18513, Apr. 26, 1996; Amdt. 190-7, 61 FR 27792, June 3, 1996; Amdt. 190-7, 63 FR 7722, Feb. 17, 1998; 70 FR 11137, Mar. 8, 2005; Amdt. 190-16, 78 FR 58909, Sept. 25, 2013] § 190.205 Warnings. Upon determining that a probable violation of 49 U.S.C. 60101 et seq., [Amdt. 190-16, 78 FR 58909, Sept. 25, 2013] § 190.206 Amendment of plans or procedures. (a) A Regional Director begins a proceeding to determine whether an operator's plans or procedures required under parts 192, 193, 195, and 199 of this subchapter are inadequate to assure safe operation of a pipeline facility by issuing a notice of amendment. The notice will specify the alleged inadequacies and the proposed revisions of the plans or procedures and provide an opportunity to respond. The notice will allow the operator 30 days following receipt of the notice to submit written comments, revised procedures, or a request for a hearing under § 190.211. (b) After considering all material presented in writing or at the hearing, if applicable, the Associate Administrator determines whether the plans or procedures are inadequate as alleged. The Associate Administrator issues an order directing amendment of the plans or procedures if they are inadequate, or withdraws the notice if they are not. In determining the adequacy of an operator's plans or procedures, the Associate Administrator may consider: (1) Relevant pipeline safety data; (2) Whether the plans or procedures are appropriate for the particular type of pipeline transportation or facility, and for the location of the facility; (3) The reasonableness of the plans or procedures; and (4) The extent to which the plans or procedures contribute to public safety. (c) An order directing amendment of an operator's plans or procedures prescribed in this section may be in addition to, or in conjunction with, other appropriate enforcement actions prescribed in this subpart. [Amdt. 190-16, 78 FR 58910, Sept. 25, 2013] § 190.207 Notice of probable violation. (a) Except as otherwise provided by this subpart, a Regional Director begins an enforcement proceeding by serving a notice of probable violation on a person charging that person with a probable violation of 49 U.S.C. 60101 et seq., (b) A notice of probable violation issued under this section shall include: (1) Statement of the provisions of the laws, regulations or orders which the respondent is alleged to have violated and a statement of the evidence upon which the allegations are based; (2) Notice of response options available to the respondent under § 190.208; (3) If a civil penalty is proposed under § 190.221, the amount of the proposed civil penalty and the maximum civil penalty for which respondent is liable under law; and (4) If a compliance order is proposed under § 190.217, a statement of the remedial action being sought in the form of a proposed compliance order. (c) The Regional Director may amend a notice of probable violation at any time prior to issuance of a final order under § 190.213. If an amendment includes any new material allegations of fact, proposes an increased civil penalty amount, or proposes new or additional remedial action under § 190.217, the respondent will have the opportunity to respond under § 190.208. [45 FR 20413, Mar. 27, 1980, as amended by Amdt. 190-6, 61 FR 18513, Apr. 26, 1996; Amdt. 190-16, 78 FR 58910, Sept. 25, 2013] § 190.208 Response options. Within 30 days of receipt of a notice of probable violation, the respondent must answer the Regional Director who issued the notice in the following manner: (a) When the notice contains a proposed civil penalty— (1) If the respondent is not contesting an allegation of probable violation, pay the proposed civil penalty as provided in § 190.227 and advise the Regional Director of the payment. The payment authorizes the Associate Administrator to make a finding of violation and to issue a final order under § 190.213; (2) If the respondent is not contesting an allegation of probable violation but wishes to submit a written explanation, information, or other materials the respondent believes may warrant mitigation or elimination of the proposed civil penalty, the respondent may submit such materials. This authorizes the Associate Administrator to make a finding of violation and to issue a final order under § 190.213; (3) Request the execution of a consent order under § 190.219. (4) If the respondent is contesting one or more allegations of probable violation but is not requesting a hearing under § 190.211, the respondent may submit a written response in answer to the allegations; or (5) The respondent may request a hearing under § 190.211. (b) When the notice contains a proposed compliance order— (1) If the respondent is not contesting an allegation of probable violation, agree to the proposed compliance order. This authorizes the Associate Administrator to make a finding of violation and to issue a final order under § 190.213; (2) Request the execution of a consent order under § 190.219; (3) If the respondent is contesting one or more of the allegations of probable violation or compliance terms, but is not requesting a hearing under § 190.211, the respondent may object to the proposed compliance order and submit written explanations, information, or other materials in answer to the allegations in the notice of probable violation; or (4) The respondent may request a hearing under § 190.211. (c) Before or after responding in accordance with paragraph (a) of this section or, when applicable paragraph (b) of this section, the respondent may request a copy of the violation report from the Regional Director as set forth in § 190.209. The Regional Director will provide the violation report to the respondent within five business days of receiving a request. (d) Failure to respond in accordance with paragraph (a) of this section or, when applicable paragraph (b) of this section, constitutes a waiver of the right to contest the allegations in the notice of probable violation and authorizes the Associate Administrator, without further notice to the respondent, to find the facts as alleged in the notice of probable violation and to issue a final order under § 190.213. (e) All materials submitted by operators in response to enforcement actions may be placed on publicly accessible Web sites. A respondent seeking confidential treatment under 5 U.S.C. 552(b) for any portion of its responsive materials must provide a second copy of such materials along with the complete original document. A respondent may redact the portions it believes qualify for confidential treatment in the second copy but must provide a written explanation for each redaction. [Amdt. 190-16, 78 FR 58910, Sept. 25, 2013, as amended by Amdt. No. 190-26, 91 FR 21973, Apr. 24, 2026] § 190.209 Case file. (a) The case file, as defined in this section, is available to the respondent in all enforcement proceedings conducted under this subpart. (b) The case file of an enforcement proceeding consists of the following: (1) In cases commenced under § 190.206, the notice of amendment and the relevant procedures; (2) In cases commenced under § 190.207, the notice of probable violation and the violation report; (3) In cases commenced under § 190.233, the corrective action order or notice of proposed corrective action order and the data report, if one is prepared; (4) In cases commenced under § 190.239, the notice of proposed safety order; (5) Any documents and other material submitted by the respondent in response to the enforcement action; (6) In cases involving a hearing, any material submitted during and after the hearing as set forth in § 190.211; and (7) The Regional Director's written evaluation of response material submitted by the respondent and recommendation for final action, if one is prepared. [Amdt. 190-16, 78 FR 58910, Sept. 25, 2013] § 190.210 Separation of functions. (a) General. (b) Prohibition on communications. [Amdt. 190-16, 78 FR 58911, Sept. 25, 2013] § 190.211 Hearing. (a) General. (b) Hearing request and statement of issues. (c) Telephonic and in-person hearings. (d) Pre-hearing submissions. (e) Conduct of the hearing. (f) Written transcripts. (g) Post-hearing submission. (h) Preparation of decision. [Amdt. 190-16, 78 FR 58911, Sept. 25, 2013] § 190.212 Presiding official, powers, and duties. (a) General. (b) Time and place of the hearing. (c) Powers and duties of Presiding Official. (1) Regulate the course of the hearing and conduct of the parties and their counsel; (2) Receive evidence and inquire into the relevant and material facts; (3) Require the submission of documents and other information; (4) Direct that documents or briefs relate to issues raised during the course of the hearing; (5) Set the date for filing documents, briefs, and other items; (6) Prepare a recommended decision; and (7) Exercise the authority necessary to carry out the responsibilities of the Presiding Official under this subpart. [Amdt. 190-16, 78 FR 58911, Sept. 25, 2013] § 190.213 Final order. (a) In an enforcement proceeding commenced under § 190.207, an attorney from the Office of Chief Counsel prepares a recommended decision after expiration of the 30-day response period prescribed in § 190.208. If a hearing is held, the Presiding Official prepares the recommended decision as set forth in § 190.211. The recommended decision is forwarded to the Associate Administrator who considers the case file and issues a final order. The final order includes— (1) A statement of findings and determinations on all material issues, including a determination as to whether each alleged violation has been proved; (2) If a civil penalty is assessed, the amount of the penalty and the procedures for payment of the penalty, provided that the assessed civil penalty may not exceed the penalty proposed in the notice of probable violation; and (3) If a compliance order is issued, a statement of the actions required to be taken by the respondent and the time by which such actions must be accomplished. (b) In cases where a substantial delay is expected in the issuance of a final order, notice of that fact and the date by which it is expected that action will be taken is provided to the respondent upon request and whenever practicable. [Amdt. 190-16, 78 FR 58911, Sept. 25, 2013] § 190.215 [Reserved] Compliance Orders § 190.217 Compliance orders generally. When a Regional Director has reason to believe that a person is engaging in conduct that violates 49 U.S.C. 60101 et seq., [Amdt. 190-16, 78 FR 58912, Sept. 25, 2013] § 190.219 Consent order. (a) At any time prior to the resolution of an enforcement proceeding under subpart B of this part, the Regional Director and respondent may agree to resolve the case by execution of a consent agreement and order, which may be jointly executed by the parties and issued by the Associate Administrator. Upon execution, the consent order is considered a final order under § 190.213. (b) A consent order executed under paragraph (a) of this section shall include: (1) An admission by the respondent of all jurisdictional facts; (2) An express waiver of further procedural steps and of all right to seek judicial review or otherwise challenge or contest the validity of that order; (3) An acknowledgement that the notice may be used to construe the terms of the consent order; and (4) A statement of the actions required of the respondent and the time by which such actions shall be accomplished. (c) Prior to the execution of a consent agreement and order arising out of a corrective action order under § 190.233, the Associate Administrator will notify any appropriate State official in accordance with 49 U.S.C. 60112(c). [45 FR 20413, Mar. 27, 1980, as amended by Amdt. 190-6, 61 FR 18514, Apr. 26, 1996; Amdt. 190-16, 78 FR 58912, Sept. 25, 2013; Amdt. No. 190-26, 91 FR 21973, Apr. 24, 2026] Civil Penalties § 190.221 Civil penalties generally. When a Regional Director has reason to believe that a person has committed an act violating 49 U.S.C. 60101 et seq., [Amdt. 190-16, 78 FR 58912, Sept. 25, 2013] § 190.223 Maximum penalties. (a) Any person found to have violated a provision of 49 U.S.C. 60101, et seq., et seq. (b) Any person found to have violated a provision of 33 U.S.C. 1321(j), or any regulation or order issued thereunder, is subject to an administrative civil penalty under 33 U.S.C. 1321(b)(6), as adjusted by 40 CFR 19.4. (c) Any person found to have violated any standard or order under 49 U.S.C. 60103 is subject to an administrative civil penalty not to exceed $99,704, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section. (d) Any person who is determined to have violated any standard or order under 49 U.S.C. 60129 is subject to an administrative civil penalty not to exceed $1,584, which may be in addition to other penalties to which such person may be subject under paragraph (a) of this section. (e) Separate penalties for violating a regulation prescribed under this subchapter and for violating an order issued under §§ 190.206, 190.213, 190.233, or 190.239 may not be imposed under this section if both violations are based on the same act. [Amdt. 190-16, 78 FR 58912, Sept. 25, 2013, as amended at 81 FR 42566, June 30, 2016; Amdt. 190-17, 82 FR 19328, Apr. 27, 2017; 84 FR 37071, July 31, 2019; 86 FR 1756, Jan 11, 2021; 86 FR 23252, May 3, 2021; 87 FR 15866, Mar. 21, 2022; 88 FR 1125, Jan. 6, 2023; 88 FR 89560, Dec. 28, 2023; 89 FR 106294, Dec. 30, 2024] § 190.225 Assessment considerations. In determining the amount of a civil penalty under this part, (a) The Associate Administrator will consider: (1) The nature, circumstances and gravity of the violation, including adverse impact on the environment; (2) The degree of the respondent's culpability; (3) The respondent's history of prior offenses; (4) Any good faith by the respondent in attempting to achieve compliance; (5) The effect on the respondent's ability to continue in business; and (b) The Associate Administrator may consider: (1) The economic benefit gained from violation, if readily ascertainable, without any reduction because of subsequent damages; and (2) Such other matters as justice may require. [Amdt. 190-16, 78 FR 58912, Sept. 25, 2013] § 190.227 Payment of penalty. (a) Except for payments exceeding $10,000, payment of a civil penalty proposed or assessed under this subpart may be made by certified check or money order (containing the CPF Number for the case), payable to “U.S. Department of Transportation,” to the Federal Aviation Administration, Mike Monroney Aeronautical Center, Financial Operations Division (AMZ-341), P.O. Box 25770, Oklahoma City, OK 73125, or by wire transfer through the Federal Reserve Communications System (Fedwire) to the account of the U.S. Treasury, or via https://www.pay.gov. (b) Payment of a civil penalty assessed in a final order issued under § 190.213 or affirmed in a decision on a petition for reconsideration must be made within 20 days after receipt of the final order or decision. Failure to do so will result in the initiation of collection action, including the accrual of interest and penalties, in accordance with 31 U.S.C. 3717 and 49 CFR part 89. [Amdt. 190-7, 61 FR 27792, June 3, 1996, as amended at 70 FR 11138, Mar. 8, 2005; 73 FR 16567, Mar. 28, 2008; Amdt. 190-16, 78 FR 58912, Sept. 25, 2013] §§ 190.229-190.231 [Reserved] Specific Relief § 190.233 Corrective action orders. (a) Generally. (b) Waiver of notice and expedited review. (c) Notice and hearing: (1) Written notice that OPS intends to issue an order under this section will be served upon the owner or operator of an alleged hazardous facility in accordance with § 190.5. The notice must allege the existence of a hazardous facility and state the facts and circumstances supporting the issuance of a corrective action order. The notice must provide the owner or operator with an opportunity to respond within 10 days of receipt. (2) An owner or operator that elects to exercise its opportunity for a hearing under this section must notify the Associate Administrator of that election in writing within 10 days of receipt of the notice provided under paragraph (c)(1) of this section, or the order under paragraph (b) of this section when applicable. The absence of such written notification waives an owner or operator's opportunity for a hearing. (3) At any time after issuance of a notice or order under this section, the respondent may request a copy of the case file as set forth in § 190.209. (4) A hearing under this section is conducted pursuant to § 190.211. The hearing should be held within 15 days of receipt of the respondent's request for a hearing. (5) After conclusion of a hearing under this section, the Presiding Official submits a recommended decision to the Associate Administrator as to whether or not the facility is or would be hazardous to life, property, or the environment, and if necessary, requiring expeditious corrective action. If a notice or order is contested in writing without a hearing, an attorney from the Office of Chief Counsel prepares the recommended decision. The recommended decision should be submitted to the Associate Administrator within five business days after conclusion of the hearing or after receipt of the respondent's written objection if no hearing is held. Upon receipt of the recommendation, the Associate Administrator will proceed in accordance with paragraphs (d) through (h) of this section. If the Associate Administrator finds the facility is or would be hazardous to life, property, or the environment, the Associate Administrator issues a corrective action order in accordance with this section, or confirms (or amends) the corrective action order issued under paragraph (b) of this section. If the Associate Administrator does not find the facility is or would be hazardous to life, property, or the environment, the Associate Administrator withdraws the notice or terminates the order issued under paragraph (b) of this section, and promptly notifies the operator in writing by service as prescribed in § 190.5. (d) The Associate Administrator may find a pipeline facility to be hazardous under paragraph (a) of this section: (1) If under the facts and circumstances the Associate Administrator determines the particular facility is hazardous to life, property, or the environment; or (2) If the pipeline facility or a component thereof has been constructed or operated with any equipment, material, or technique which the Associate Administrator determines is hazardous to life, property, or the environment, unless the operator involved demonstrates to the satisfaction of the Associate Administrator that, under the particular facts and circumstances involved, such equipment, material, or technique is not hazardous. (e) In making a determination under paragraph (d) of this section, the Associate Administrator shall consider, 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 issued in connection with any investigation conducted by the Board; and (5) Such other factors as the Associate Administrator may consider appropriate. (f) A corrective action order shall contain the following information: (1) A finding that the pipeline facility is or would be hazardous to life, property, or the environment. (2) The relevant facts which form the basis of that finding. (3) The legal basis for the order. (4) The nature and description of any particular corrective action required of the respondent. (5) The date by which the required corrective action must be taken or completed and, where appropriate, the duration of the order. (6) If the opportunity for a hearing was waived pursuant to paragraph (b) of this section, a statement that an opportunity for a hearing will be available at a particular time and location after issuance of the order. (g) The Associate Administrator will terminate a corrective action order whenever the Associate Administrator determines that the facility is no longer hazardous to life, property, or the environment. If appropriate, however, a notice of probable violation may be issued under § 190.207. (h) At any time after a corrective action order issued under this section has become effective, the Associate Administrator may request the Attorney General to bring an action for appropriate relief in accordance with § 190.235. (i) Upon petition by the Attorney General, the District Courts of the United States shall have jurisdiction to enforce orders issued under this section by appropriate means. [70 FR 11138, Mar. 8, 2005, as amended by Amdt. 190-16, 78 FR 58912, Sept. 25, 2013] § 190.235 Civil actions generally. Whenever it appears to the Associate Administrator that a person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any provision of 49 U.S.C. 60101 et seq., [70 FR 11139, Mar. 8, 2005] § 190.236 Emergency orders: Procedures for issuance and rescision. (a) Determination of imminent hazard. (1) The violation, condition, or practice that constitutes or is causing the imminent hazard; (2) Those entities 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; and (6) How the considerations listed in paragraph (c) of this section were taken into account. (b) Consultation. (c) Considerations. (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 results of any consultations with appropriate Federal agencies, State agencies, and other entities knowledgeable in pipeline safety or operations. (d) Service. Federal Register Federal Register (e) Rescission. [Amdt. 190-21, 84 FR 52027, Oct. 1, 2019] § 190.237 Emergency orders: Petitions for review. (a) Requirements. (1) Be in writing; (2) State with particularity each part of the emergency order that is sought to be modified or terminated and include all information, evidence and arguments in support thereof; (3) State whether the petitioner requests a formal hearing in accordance with 5 U.S.C. 554, and, if so, any material facts in dispute; and, (4) Be filed and served in accordance with paragraph (h) of this section. (b) Modification of petitions. (c) Response to the petition for review. (d) Associate Administrator's responsibilities. Formal hearing requested. (2) No formal hearing requested. (3) Consolidation. (e) Formal Hearings. (1) Administer oaths and affirmations; (2) Issue subpoenas as provided by the appropriate statutes and agency regulations ( e.g., (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. (f) Parties. (g) Burden of proof. (h) Filing and service. http://www.regulations.gov. (2) Each document filed in accordance with paragraph (h)(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); and (iii) If the petition for review requests a formal hearing, the Chief Administrative Law Judge, U.S. Department of Transportation, Office of Hearings, 1200 New Jersey Ave SE, c/o Mail Center (E11-310), Washington, DC 20590 (facsimile: 202-366-7536). (3) Service must be made in accordance with § 190.5 of this part. The emergency order must state all relevant service requirements and list the persons to be served and may be updated as necessary. (4) Certificate of service. (5) If applicable, service upon a person's duly authorized representative, agent for service, or an organization's president or chief executive officer constitutes service upon that person. (i) Report and recommendation. (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. (j) Petition for reconsideration. (i) Not more than five days after the administrative law judge has issued a report and recommendation under paragraph (i) of this section, provided such report and recommendation is issued 20 days or less after the petition for review was filed with PHMSA; or (ii) Not more than two days after the administrative law judge has issued his or her report and recommendation under paragraph (h) of this section, where such report and recommendation are issued more than 20 days after the petition for review was filed with PHMSA. (2) The Associate Administrator must issue a decision on a petition for reconsideration no later than 30 days after receipt of the petition for review. Such decision constitutes final agency action on a petition for review. (k) Judicial review. (l) Expiration of order. No petition for review filed: (2) Petition for review filed and decision rendered within 30 days. (3) Petition for review filed but no decision rendered within 30 days. (m) Time. [Amdt. 190-21, 84 FR 52027, Oct. 1, 2019] § 190.239 Safety orders. (a) When may PHMSA issue a safety order? (b) How is an operator notified of the proposed issuance of a safety order and what are its responses options? Notice of proposed safety order. (2) Informal consultation. et seq. (3) Hearing. (4) Conduct of hearing. (5) Post-hearing action. (6) Termination of safety order. (c) How is the determination made that a pipeline facility has a condition that poses an integrity risk? (1) If under the facts and circumstances the Associate Administrator determines the particular facility has such a condition; or (2) If the pipeline facility or a component thereof has been constructed or operated with any equipment, material, or technique with a history of being susceptible to failure when used in pipeline service, unless the operator involved demonstrates that such equipment, material, or technique is not susceptible to failure given the manner it is being used for a particular facility. (d) What factors must PHMSA consider in making a determination that a risk condition is present? (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 where the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas; (4) For hazardous liquid pipelines, the proximity of the pipeline to an unusually sensitive area; (5) The population density and growth patterns of the area in which the pipeline facility is located; (6) Any relevant recommendation of the National Transportation Safety Board issued in connection with any investigation conducted by the Board; (7) The likelihood that the condition will impair the serviceability of the pipeline; (8) The likelihood that the condition will worsen over time; and (9) The likelihood that the condition is present or could develop on other areas of the pipeline. (e) What information will be included in a safety order? (1) A finding that the pipeline facility has a condition that poses a pipeline integrity risk to public safety, property, or the environment; (2) The relevant facts which form the basis of that finding; (3) The legal basis for the order; (4) The nature and description of any particular corrective actions to be required of the operator; and (5) The date(s) by which the required corrective actions must be taken or completed and, where appropriate, the duration of the order. (f) Can PHMSA take other enforcement actions on the affected facilities? (g) May I petition for reconsideration of a safety order? [73 FR 16567, Mar. 28, 2008, as amended at 74 FR 2893, Jan. 16, 2009; Amdt. 190-16, 78 FR 58913, Sept. 25, 2013] § 190.241 Finality. Except as otherwise provided by § 190.243, an order directing amendment issued under § 190.206, a final order issued under § 190.213, a corrective action order issued under § 190.233, or a safety order issued under § 190.239 is considered final administrative action on that enforcement proceeding. [Amdt. 190-16, 78 FR 58913, Sept. 25, 2013] § 190.243 Petitions for reconsideration. (a) A respondent may petition the Associate Administrator for reconsideration of an order directing amendment of plans or procedures issued under § 190.206, a final order issued under § 190.213, or a safety order issued under § 190.239. The written petition must be received no later than 20 days after receipt of the order by the respondent. A copy of the petition must be provided to the Chief Counsel of the Pipeline and Hazardous Materials Safety Administration, East Building, 2nd Floor, Mail Stop E26-105, 1200 New Jersey Ave. SE., Washington, DC 20590 or by email to phmsachiefcounsel@dot.gov. (b) If the respondent requests the consideration of additional facts or arguments, the respondent must submit the reasons why they were not presented prior to issuance of the final order. (c) The filing of a petition under this section stays the payment of any civil penalty assessed. However, unless the Associate Administrator otherwise provides, the order, including any required corrective action, is not stayed. (d) The Associate Administrator may grant or deny, in whole or in part, any petition for reconsideration without further proceedings. If the Associate Administrator reconsiders an order under this section, a final decision on reconsideration may be issued without further proceedings, or, in the alternative, additional information, data, and comment may be requested by the Associate Administrator, as deemed appropriate. (e) It is the policy of the Associate Administrator to expeditiously issue notice of the action taken on a petition for reconsideration. In cases where a substantial delay is expected, notice of that fact and the date by which it is expected that action will be taken is provided to the respondent upon request and whenever practicable. (f) If the Associate Administrator reconsiders an order under this section, the decision on reconsideration is the final administrative action on that enforcement proceeding. (g) Any application for judicial review must be filed no later than 89 days after the issuance of the decision in accordance with 49 U.S.C. 60119(a). (h) Judicial review of agency action under 49 U.S.C. 60119(a) will apply the standards of review established in 5 U.S.C. 706. [Amdt. 190-16, 78 FR 58913, Sept. 25, 2013] Subpart C—Criminal Enforcement Source: Amdt. 190-16, 78 FR 58914, Sept. 25, 2013, unless otherwise noted. § 190.291 Criminal penalties generally. (a) Any person who willfully and knowingly violates a provision of 49 U.S.C. 60101 et seq. (b) Any person who willfully and knowingly injures or destroys, or attempts to injure or destroy, any interstate transmission facility, any interstate pipeline facility, or any intrastate pipeline facility used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce (as those terms are defined in 49 U.S.C. 60101 et seq. (c) Any person who willfully and knowingly defaces, damages, removes, or destroys any pipeline sign, right-of-way marker, or marine buoy required by 49 U.S.C. 60101 et seq. (d) Any person who willfully and knowingly engages in excavation activity without first using an available one-call notification system to establish the location of underground facilities in the excavation area; or without considering location information or markings established by a pipeline facility operator; and (1) Subsequently damages a pipeline facility resulting in death, serious bodily harm, or property damage exceeding $50,000; (2) Subsequently damages a pipeline facility and knows or has reason to know of the damage but fails to promptly report the damage to the operator and to the appropriate authorities; or (3) Subsequently damages a hazardous liquid pipeline facility that results in the release of more than 50 barrels of product; will, upon conviction, be subject to a fine under title 18, United States Code, imprisonment for a term not to exceed 5 years, or both, for each offense. (e) No person shall be subject to criminal penalties under paragraph (a) of this section for violation of any regulation and the violation of any order issued under §§ 190.217, 190.219 or 190.291 if both violations are based on the same act. § 190.293 Criminal referrals. (a) If a PHMSA employee becomes aware of any actual or possible activity subject to criminal penalties under § 190.291, the employee must report it to the Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration, and to the employee's supervisor. The Chief Counsel may refer the report to the Associate Administrator to investigate. If appropriate, the Chief Counsel shall refer the report to the Office of Inspector General, or other law enforcement as appropriate (with notification to the Office of Inspector General as soon as possible). (b) A PHMSA employee also has the option of making a direct referral to the Office of Inspector General (OIG), either by directly contacting an OIG investigator, or via the OIG hotline at 800-424-9071, at https://www.oig.dot.gov/hotline, hotline@oig.dot.gov, [87 FR 28781, May 11, 2022] Subpart D—Procedures for Adoption of Rules Source: Amdt. 190-8, 61 FR 50909, Sept. 27, 1996, unless otherwise noted. § 190.301 Scope. This subpart prescribes general rulemaking procedures for the issue, amendment, and repeal of Pipeline Safety Program regulations of the Pipeline and Hazardous Materials Safety Administration of the Department of Transportation. [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996, as amended at 70 FR 11137, Mar. 8, 2005] § 190.303 Delegations. For the purposes of this subpart, Administrator [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996, as amended at 70 FR 11137, Mar. 8, 2005] § 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 § 190.325; and final regulations are maintained by the Pipeline and Hazardous Materials Safety Administration at 1200 New Jersey Avenue, SE, Washington, D.C. 20590-0001. (b) Once a public docket is established, docketed material may be accessed at http://www.regulations.gov. http://www.regulations.gov. [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996, as amended at 70 FR 11137, 11139, Mar. 8, 2005; 73 FR 16566, Mar. 28, 2008; 73 FR 16568, Mar. 28, 2008] § 190.307 Records. Records of the Pipeline and Hazardous Materials Safety 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). [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996, as amended at 70 FR 11137, Mar. 8, 2005] § 190.309 Where to file petitions. Petitions for extension of time to comment submitted under § 190.319, petitions for hearings submitted under § 190.327, petitions for rulemaking submitted under § 190.331, and petitions for reconsideration submitted under § 190.335 must be submitted to: Administrator, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE, Washington, D.C. 20590-0001. [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996, as amended at 70 FR 11137, Mar. 8, 2005; 73 FR 16566, Mar. 28, 2008] § 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. § 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. § 190.315 Contents of notices of proposed rulemaking. (a) Each notice of proposed rulemaking is published in the Federal Register, (b) Each notice, whether published in the Federal Register (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. § 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 § 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. § 190.319 Petitions for extension of time to comment. A petition for extension of the time to submit comments must be submitted to PHMSA in accordance with § 190.309 and received by PHMSA not later than 10 days before expiration of the time stated in the notice. 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. [Amdt. 190-16, 78 FR 58914, Sept. 25, 2013] § 190.321 Contents of written comments. All written comments must be in English. 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 must be identified by document title and page. [Amdt. 190-16, 78 FR 58914, Sept. 25, 2013] § 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. § 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. § 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 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 subpart. Unless otherwise specified, hearings held under this subpart are informal, non-adversarial 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. [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996. Redesignated and amended by Amdt. 190-16, 78 FR 58914, Sept. 25, 2013] § 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, § 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. § 190.333 Processing of petition. (a) General. (b) Grants. (c) Denials. (d) Notification. § 190.335 Petitions for reconsideration. (a) Except as provided in § 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. The petition must be received not later than 30 days after publication of the rule in the Federal Register. (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. [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996. Redesignated and amended by Amdt. 190-16, 78 FR 58914, Sept. 25, 2013] § 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, Federal Register. § 190.338 Appeals. (a) Any interested person may appeal a denial of the Associate Administrator or the Chief Counsel, issued under § 190.333 or § 190.337, to the Administrator. (b) An appeal must be received within 20 days of service of written notice to petitioner of the Associate Administrator's or the Chief Counsel's decision, or within 20 days from the date of publication of the decision in the Federal Register, (c) Unless the Administrator otherwise provides, the filing of an appeal under this section does not stay the effectiveness of any rule. [Amdt. 190-8, 61 FR 50909, Sept. 27, 1996. Redesignated and amended by Amdt. 190-16, 78 FR 58914, Sept. 25, 2013] § 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, (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 § 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 § 190.341 Special permits. (a) What is a special permit? (b) How do I apply for a special permit? (1) Mail, express mail, or overnight courier to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, East Building, Washington, DC 20590.; or (2) Electronically by email to: pipelinespecialpermits@dot.gov. (c) What information must be contained in the application? (1) The name, mailing address, and telephone number of the applicant and whether the applicant is an operator; (2) A detailed description of the pipeline facilities for which the special permit is sought, including: (i) The beginning and ending points of the pipeline mileage to be covered and the Counties and States in which it is located; (ii) Whether the pipeline is interstate or intrastate and a general description of the right-of-way including proximity of the affected segments to populated areas and unusually sensitive areas; (iii) Relevant pipeline design and construction information including the year of installation, the material, grade, diameter, wall thickness, and coating type; and (iv) Relevant operating information including operating pressure, leak history, and most recent testing or assessment results; (3) A list of the specific regulation(s) from which the applicant seeks relief; (4) An explanation of the unique circumstances that the applicant believes make the applicability of that regulation or standard (or portion thereof) unnecessary or inappropriate for its facility; (5) A description of any measures or activities the applicant proposes to undertake as an alternative to compliance with the relevant regulation, including an explanation of how such measures will mitigate any safety or environmental risks; (6) A description of any positive or negative impacts on affected stakeholders and a statement indicating how operating the pipeline pursuant to a special permit would be in the public interest; (7) A certification that operation of the applicant's pipeline under the requested special permit would not be inconsistent with pipeline safety; (8) Any other information PHMSA may need to process the application including environmental analysis where necessary. (d) How does PHMSA handle special permit applications? Public notice. (2) Grants, renewals, and denials. http://www.phmsa.dot.gov/. (e) How does PHMSA handle special permit renewals? (2) If, at least 180 days before an existing special permit expires the holder files an application for renewal that is complete and conforms to the requirements of this section, the special permit will not expire until final administrative action on the application for renewal has been taken: (i) Electronically to PHMSA by email at: pipelinespecialpermits@dot.gov; (ii) Express mail, or overnight courier to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. (f) What information must be included in the renewal application? (i) A summary report in accordance with the requirements of the original special permit including verification that the grantee's operations and maintenance plan (O&M Plan) is consistent with the conditions of the special permit; (ii) Name, mailing address and telephone number of the special permit grantee; (iii) Location of special permit—areas on the pipeline where the special permit is applicable including: Diameter, mile posts, county, and state; (iv) Applicable usage of the special permit—original and future; and (v) Data for the special permit segment and area identified in the special permit as needing additional inspections to include, as applicable: (A) Pipe attributes: Pipe diameter, wall thickness, grade, seam type; and pipe coating including girth weld coating; (B) Operating Pressure: Maximum allowable operating pressure (MAOP); class location (including boundaries on aerial photography); (C) High Consequence Areas (HCAs): HCA boundaries on aerial photography; (D) Material Properties: Pipeline material documentation for all pipe, fittings, flanges, and any other facilities included in the special permit. Material documentation must include: Yield strength, tensile strength, chemical composition, wall thickness, and seam type; (E) Test Pressure: Hydrostatic test pressure and date including pressure and temperature charts and logs and any known test failures or leaks; (F) In-line inspection (ILI): Summary of ILI survey results from all ILI tools used on the special permit segments during the previous five years or latest ILI survey result; (G) Integrity Data and Integration: The following information, as applicable, for the past five (5) years: Hydrostatic test pressure including any known test failures or leaks; casings(any shorts); any in-service ruptures or leaks; close interval survey (CIS) surveys; depth of cover surveys; rectifier readings; test point survey readings; alternating current/direct current (AC/DC) interference surveys; pipe coating surveys; pipe coating and anomaly evaluations from pipe excavations; stress corrosion cracking (SCC), selective seam weld corrosion (SSWC) and hard spot excavations and findings; and pipe exposures from encroachments; (H) In-service: Any in-service ruptures or leaks including repair type and failure investigation findings; and (I) Aerial Photography: Special permit segment and special permit inspection area, if applicable. (2) PHMSA may request additional operational, integrity or environmental assessment information prior to granting any request for special permit renewal. (3) The existing special permit will remain in effect until PHMSA acts on the application for renewal by granting or denying the request. (g) Can a special permit be requested on an emergency basis? (h) How do I apply for an emergency special permit? (1) Electronically by email to: phmsa.pipeline-emergencyspecpermit@dot.gov; (2) Express mail/overnight courier to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, East Building, Washington, DC 20590. (3) Express mail/overnight courier to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, Washington, DC 20590. (i) What must be contained in an application for an emergency special permit? (1) An explanation of the actual or impending emergency and how the applicant is affected; (2) A citation of the regulations that are implicated and the specific reasons the permit is necessary to address the emergency (e.g., lack of accessibility, damaged equipment, insufficient manpower); (3) A statement indicating how operating the pipeline pursuant to an emergency special permit is in the public interest (e.g., continuity of service, service restoration); (4) A description of any proposed alternatives to compliance with the regulation (e.g., additional inspections and tests, shortened reassessment intervals); and (5) A description of any measures to be taken after the emergency situation or permit expires—whichever comes first—to confirm long-term operational reliability of the pipeline facility. Note to paragraph ( g If PHMSA determines that handling of the application on an emergency basis is not warranted, PHMSA will notify the applicant and process the application under normal special permit procedures of this section. (j) In what circumstances will PHMSA revoke, suspend, or modify a special permit? (i) Intervening changes in Federal law mandate revocation, suspension, or modification of the special permit; (ii) Based on a material change in conditions or circumstances, continued adherence to the terms of the special permit would be inconsistent with safety; (iii) The application contained inaccurate or incomplete information, and the special permit would not have been granted had the application been accurate and complete; (iv) The application contained deliberately inaccurate or incomplete information; or (v) The holder has failed to comply with any material term or condition of the special permit. (2) Except as provided in paragraph (h)(3) of this section, before a special permit is modified, suspended or revoked, PHMSA will notify the holder in writing of the proposed action and the reasons for it, and provide an opportunity to show cause why the proposed action should not be taken. (i) The holder may file a written response that shows cause why the proposed action should not be taken within 30 days of receipt of notice of the proposed action. (ii) After considering the holder's written response, or after 30 days have passed without response since receipt of the notice, PHMSA will notify the holder in writing of the final decision with a brief statement of reasons. (3) If necessary to avoid a risk of significant harm to persons, property, or the environment, PHMSA may in the notification declare the proposed action immediately effective. (4) Unless otherwise specified, the terms and conditions of a corrective action order, compliance order, or other order applicable to a pipeline facility covered by a special permit will take precedence over the terms of the special permit. (5) A special permit holder may seek reconsideration of a decision under paragraph (h) of this section as provided in paragraph (i) of this section. (k) Can a denial of a request for a special permit or a revocation of an existing special permit be appealed? (l) Are documents related to an application for a special permit available for public inspection? (m) Am I subject to enforcement action for non-compliance with the terms and conditions of a special permit? [73 FR 16568, Mar. 28, 2008, as amended at 74 FR 2893, Jan. 16, 2009; Amdt. 190-16, 78 FR 58914, Sept. 25, 2013; Amdt. 190-19, 82 FR 7995, Jan. 23, 2017; Amdt. 190-27, 91 FR 21967, Apr. 24, 2026; Amdt. 190-28, 21978, Apr. 24, 2026] § 190.343 Information made available to the public and request for protection of confidential commercial information. When you submit information to PHMSA during a rulemaking proceeding, as part of your application for special permit or renewal, or for any other reason, we may make that information publicly available unless you ask that we keep the information confidential. (a) Asking for protection of confidential commercial information. (1) Mark “confidential” on each page of the original document you would like to keep confidential. (2) Send us, along with the original document, a second copy of the original document with the confidential commercial information deleted. (3) Explain why the information you are submitting is confidential commercial information. (b) PHMSA decision. [Amdt. 190-19, 82 FR 7995, Jan. 23, 2017] Subpart E—Cost Recovery for Design Reviews Source: Amdt. 190-19, 82 FR 7996, Jan. 23, 2017, unless otherwise noted. § 190.401 Scope. If PHMSA conducts a facility design and/or construction safety review or inspection in connection with a proposal to construct, expand, or operate a gas, hazardous liquid or carbon dioxide pipeline facility, or a liquefied natural gas facility that meets the applicability requirements in § 190.403, PHMSA may require the applicant proposing the project to pay the costs incurred by PHMSA relating to such review, including the cost of design and construction safety reviews or inspections. § 190.403 Applicability. The following paragraph specifies which projects will be subject to the cost recovery requirements of this section. (a) This section applies to any project that— (1) Has design and construction costs totaling at least $2,500,000,000, as periodically adjusted by PHMSA, to take into account increases in the Consumer Price Index for all urban consumers published by the Department of Labor, based on— (i) The cost estimate provided to the Federal Energy Regulatory Commission in an application for a certificate of public convenience and necessity for a gas pipeline facility or an application for authorization for a liquefied natural gas pipeline facility; or (ii) A good faith estimate developed by the applicant proposing a hazardous liquid or carbon dioxide pipeline facility and submitted to the Associate Administrator. The good faith estimate for design and construction costs must include all of the applicable cost items contained in the Federal Energy Regulatory Commission application referenced in § 190.403(a)(1)(i) for a gas or LNG facility. In addition, an applicant must take into account all survey, design, material, permitting, right-of way acquisition, construction, testing, commissioning, start-up, construction financing, environmental protection, inspection, material transportation, sales tax, project contingency, and all other applicable costs, including all segments, facilities, and multi-year phases of the project; (2) Uses new or novel technologies or design, as defined in § 190.3. (b) The Associate Administrator may not collect design safety review fees under this section and 49 U.S.C. 60301 for the same design safety review. (c) The Associate Administrator, after receipt of the design specifications, construction plans and procedures, and related materials, determines if cost recovery is necessary. The Associate Administrator's determination is based on the amount of PHMSA resources needed to ensure safety and environmental protection. § 190.405 Notification. For any new pipeline facility construction project in which PHMSA will conduct a design review, the applicant proposing the project must notify PHMSA and provide the design specifications, construction plans and procedures, project schedule and related materials at least 120 days prior to the commencement of any of the following activities: Route surveys for construction, material manufacturing, offsite facility fabrications, construction equipment move-in activities, onsite or offsite fabrications, personnel support facility construction, and any offsite or onsite facility construction. To the maximum extent practicable, but not later than 90 days after receiving such design specifications, construction plans and procedures, and related materials, PHMSA will provide written comments, feedback, and guidance on the project. § 190.407 Master Agreement. PHMSA and the applicant will enter into an agreement within 60 days after PHMSA received notification from the applicant provided in § 190.405, outlining PHMSA's recovery of the costs associated with the facility design safety review. (a) A Master Agreement, at a minimum, includes: (1) Itemized list of direct costs to be recovered by PHMSA; (2) Scope of work for conducting the facility design safety review and an estimated total cost; (3) Description of the method of periodic billing, payment, and auditing of cost recovery fees; (4) Minimum account balance which the applicant must maintain with PHMSA at all times; (5) Provisions for reconciling differences between total amount billed and the final cost of the design review, including provisions for returning any excess payments to the applicant at the conclusion of the project; (6) A principal point of contact for both PHMSA and the applicant; and (7) Provisions for terminating the agreement. (8) A project reimbursement cost schedule based upon the project timing and scope. (b) [Reserved] § 190.409 Fee structure. The fee charged is based on the direct costs that PHMSA incurs in conducting the facility design safety review (including construction review and inspections), and will be based only on costs necessary for conducting the facility design safety review. “Necessary for” means that but for the facility design safety review, the costs would not have been incurred and that the costs cover only those activities and items without which the facility design safety review cannot be completed. (a) Costs qualifying for cost recovery include, but are not limited to— (1) Personnel costs based upon total cost to PHMSA; (2) Travel, lodging and subsistence; (3) Vehicle mileage; (4) Other direct services, materials and supplies; (5) Other direct costs as may be specified in the Master Agreement. (b) [Reserved] § 190.411 Procedures for billing and payment of fee. All PHMSA cost calculations for billing purposes are determined from the best available PHMSA records. (a) PHMSA bills an applicant for cost recovery fees as specified in the Master Agreement, but the applicant will not be billed more frequently than quarterly. (1) PHMSA will itemize cost recovery bills in sufficient detail to allow independent verification of calculations. (2) [Reserved] (b) PHMSA will monitor the applicant's account balance. Should the account balance fall below the required minimum balance specified in the Master Agreement, PHMSA may request at any time the applicant submit payment within 30 days to maintain the minimum balance. (c) PHMSA will provide an updated estimate of costs to the applicant on or near October 1st of each calendar year. (d) Payment of cost recovery fees is due within 30 days of issuance of a bill for the fees. If payment is not made within 30 days, PHMSA may charge an annual rate of interest (as set by the Department of Treasury's Statutory Debt Collection Authorities) on any outstanding debt, as specified in the Master Agreement. (e) Payment of the cost recovery fee by the applicant does not obligate or prevent PHMSA from taking any particular action during safety inspections on the project.

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