[Federal Register Volume 64, Number 155 (Thursday, August 12, 1999)]
[Proposed Rules]
[Pages 43972-43974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20816]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 190
[Docket No. RSPA-98-4284; Notice 1]
RIN 2137-AD22
Pipeline Safety Enforcement Procedures
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: We are proposing to revise our pipeline safety enforcement
procedures concerning alleged violations for which persons agree to
proposed compliance orders or pay proposed civil penalties without
contesting the allegations. At present, if a person responds to a
notice of probable violation (NOPV) by paying a civil penalty proposed
for an alleged violation, we consider the allegation uncontested and
find that the person committed the violation. The violation then counts
as a prior offense in determining the amount of any future civil
penalty assessment against that person. We are proposing to adopt
identical procedures for NOPV responses that agree to proposed
compliance orders without contesting the alleged violations. Further,
we are proposing to stop preparing final orders for alleged violations
for which persons agree to proposed compliance orders or pay proposed
civil penalties without contesting the allegations. The proposed rule
changes would unify and streamline the handling of uncontested alleged
violations in enforcement cases.
DATES: Persons interested in submitting written comments on this notice
must do so by October 12, 1999. Late filed comments will be considered
so far as practicable.
ADDRESSES: You may submit written comments by mailing or delivering an
original and two copies to the Dockets Facility, U.S. Department of
Transportation, Room PL-401, 400 Seventh Street, SW, Washington, DC
20590-0001. The Dockets Facility is open from 10:00 a.m. to 5:00 p.m.,
Monday through Friday, except on Federal holidays when the facility is
closed. Or you may submit written comments to the docket
electronically. To do so, log on to the following Internet Web address:
http://dms.dot.gov. Click on ``Help & Information'' for instructions on
how to file a document electronically. All written comments should
identify the docket and notice numbers stated in the heading of this
notice. Anyone who wants confirmation of mailed comments must include a
self-addressed stamped postcard.
FOR FURTHER INFORMATION CONTACT: Linda Daugherty at (202) 366-4577 or
[email protected]. Comments may be read on the internet at
http://dms.dot.gov. General information about RSPA's pipeline safety
program can be obtained at http://ops.dot.gov.
SUPPLEMENTARY INFORMATION:
Response Options
Under the pipeline safety enforcement procedures in 49 CFR Part
190, in responding to an NOPV (Sec. 190.207), a person may decide not
to contest an alleged violation. To do so, the person, or
``respondent,'' either pays a proposed civil penalty
(Sec. 190.209(a)(1)) or agrees to a proposed compliance order
(Sec. 190.209(b)(1)), or both when applicable.
If a proposed civil penalty is paid, we then ``close the case with
prejudice to the respondent,'' as Sec. 190.209(a)(1) provides. Such
closure means that we consider the alleged violation to have been
committed by the respondent, and that we will treat the violation as a
``prior offense'' under Sec. 190.225(c) in determining the amount of
any future assessment against the respondent (see 53 FR 1634; Jan. 21,
1988).
In contrast, the procedures do not provide for a similar closure
when a person agrees to a proposed compliance order without contesting
the alleged violation. This inconsistency may be confusing when an NOPV
proposes both a civil penalty and a compliance order for the same
alleged violation.
[[Page 43973]]
Therefore, we are proposing to revise Sec. 190.209 to treat
uncontested responses involving civil penalty payments and compliance
order agreements alike. The separate lists of response options now
stated in Sec. 190.209(a) and Sec. 190.209(b) would be combined in
proposed Sec. 190.209(a). Proposed Sec. 190.209(a)(1) would clarify
that by paying a proposed civil penalty or agreeing to a proposed
compliance order, the respondent elects not to contest the underlying
alleged violation. The phrase ``close the case with prejudice to the
respondent'' would be replaced by a fuller explanation, under proposed
Sec. 190.209(b), of the consequences of paying a proposed civil penalty
or agreeing to a proposed compliance order without contesting the
underlying alleged violation.
A separate option under present Sec. 190.209(b) to request
execution of a consent order would be removed as unnecessary. Under
Sec. 192.219, a respondent may request execution of a consent order at
any time before issuance of a compliance order. And a consent order may
be requested in connection with any response that contests an alleged
violation.
The present paragraph (c) in Sec. 190.209 is published incorrectly
as the third item in a list instead of as an independent paragraph.
This paragraph also references a previously deleted paragraph (c). So
we are proposing to revise the paragraph structure of Sec. 190.209 for
clarity and to omit the obsolete reference in paragraph (c).
Final Order
Under Sec. 190.213, we now prepare a final order in every
enforcement case. Each order addresses each alleged violation in the
case. Based on the evidence presented, the order states our findings on
whether a violation has been committed as alleged, and if a sanction is
to be imposed, states the amount of the civil penalty or terms of the
compliance order.
For alleged violations a respondent decides not to contest by
paying a proposed civil penalty or agreeing to a proposed compliance
order, or both, we believe preparation of a separate document called a
final order is a redundant administrative step.
Proposed Sec. 190.209(b)(3) would eliminate the unnecessary
paperwork of preparing a final order for alleged violations a
respondent decides not to contest by paying a proposed civil penalty or
agreeing to a proposed compliance order, or both. A conforming change
to Sec. 190.213(a) also would be made. Despite the lack of a separate
document called ``Final Order,'' if an operator did not comply with the
terms of an agreed to compliance order, RSPA could enforce the
agreement by assessing civil penalties or by obtaining a court
injunction.
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Policies and Procedures
The Office of Management and Budget (OMB) does not consider this
proposed rulemaking to be a significant regulatory action under Section
3(f) of Executive Order 12866 (58 FR 51735; October 4, 1993).
Therefore, OMB has not reviewed this rulemaking document. DOT does not
consider this proposed rulemaking significant under its regulatory
policies and procedures (44 FR 11034; February 26, 1979). Because the
proposed rulemaking should enhance governmental efficiency without cost
to the regulated industry, a further regulatory evaluation is not
warranted.
B. Regulatory Flexibility Act
The proposed rule changes would not impose additional requirements
on pipeline operators, including small entities that operate regulated
pipelines. Based on the facts available about the anticipated impact of
this proposed rulemaking, I certify, pursuant to Section 605 of the
Regulatory Flexibility Act (5 U.S.C. 605), that this proposed
rulemaking would not have a significant economic impact on a
substantial number of small entities.
C. Executive Order 13084
The proposed rules have been analyzed in accordance with the
principles and criteria contained in Executive Order 13084,
``Consultation and Coordination with Indian Tribal Governments.''
Because the proposed rules would not significantly or uniquely affect
the Indian tribal governments, the funding and consultation
requirements of Executive Order 13084 do not apply.
D. Paperwork Reduction Act
This proposed rulemaking contains no information collection that is
subject to review by OMB under the Paperwork Reduction Act of 1995.
E. Unfunded Mandates Reform Act of 1995
This proposed rulemaking would not impose unfunded mandates under
the Unfunded Mandates Reform Act of 1995. It would not result in costs
of $100 million or more to either State, local, or tribal governments,
in the aggregate, or to the private sector, and would be the least
burdensome alternative that achieves the objective of the rule.
F. Executive Order 12612
This action would not have substantial direct effects on states, on
the relationship between the Federal Government and the states, or on
the distribution of power and responsibilities among the various levels
of Government. Therefore, in accordance with Executive Order 12612 (52
FR 41685; October 30, 1987), RSPA has determined that the final rule
does not have sufficient federalism implications to warrant preparation
of a Federalism Assessment.
G. Impact on Business Processes and Computer Systems
Many computers that use two digits to keep track of dates will, on
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900.
This glitch, the Year 2000 problem, could cause computers to stop
running or to start generating erroneous data. The Year 2000 problem
poses a threat to the global economy in which Americans live and work.
With the help of the President's Council on Year 2000 Conversion,
Federal agencies are reaching out to increase awareness of the problem
and to offer support. We do not want to impose new requirements that
would mandate business process changes when the resources necessary to
implement those requirements would otherwise be applied to the Year
2000 Problem.
This notice of proposed rulemaking does not propose business
process changes or require modifications to computer systems. Because
this notice apparently does not affect the ability of organizations to
respond to the Year 2000 problem, we do not intend to delay the
effectiveness of the rule changes proposed in this notice.
List of Subjects in 49 CFR Part 190
Enforcement procedures, Penalty, Pipeline safety.
In consideration of the foregoing, we propose to amend 49 CFR part
190 as follows:
1. The authority citation for Part 190 continues to read as
follows:
Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 60101 et seq.;
Sec. 212-213, Pub. L. 104-121, 110 Stat. 857; 49 CFR 1.53.
2. Section 190.209 is be revised to read as follows:
Sec. 190.209 Response options.
(a) Within 30 days of receipt of a notice of probable violation,
the respondent shall respond to the allegations of violation and
proposed
[[Page 43974]]
sanctions in the following way to the Regional Director who issued the
notice:
(1) Elect not to contest an allegation by paying the proposed civil
penalty or agreeing to the proposed compliance order applicable to the
allegation;
(2) Submit written explanations, information, or other materials
that answer the allegations or seek mitigation of the proposed civil
penalty or proposed compliance order; or
(3) Request a hearing under Sec. 190.211.
(b) If a respondent responds to an alleged violation under
paragraph (a)(1) of this section--
(1) The allegation automatically becomes an agency determination
that the respondent has committed the violation as alleged, allowing
OPS to consider the violation as a prior offense in assessing civil
penalties in the future;
(2) The proposed civil penalty applicable to the violation is
assessed, or the terms of the proposed compliance order applicable to
the violation are imposed, without further action; and
(3) The finding of violation, assessment of civil penalty, or
compliance terms imposed under Sec. 190.209(b)(1) and (2), as evidenced
by the notice of probable violation and the respondent's response,
constitute a final order under 49 U.S.C. 60101 et seq.
(c) Failure of the respondent to respond in accordance with
paragraph (a) of this section constitutes a waiver of the right to
contest the allegations in the notice of probable violation and
authorizes the Associate Administrator, OPS, without further notice to
the respondent, to find facts to be as alleged in the notice of
probable violation and to issue a final order under Sec. 190.213.
3. Section 190.213(a) is revised to read as follows:
Sec. 190.213 Final order.
(a) Except with respect to violations resolved under
Sec. 190.209(b), after a hearing under Sec. 190.211 or, if no hearing
has been requested, after expiration of the 30 day response period
prescribed in Sec. 190.209, the case file of an enforcement proceeding
commenced under Sec. 190.207 is forwarded to the Associate
Administrator, OPS, for issuance of a final order.
* * * * *
Issued in Washington, DC on August 6, 1999.
Richard B. Felder,
Associate Administrator for Pipeline Safety.
[FR Doc. 99-20816 Filed 8-11-99; 8:45 am]
BILLING CODE 4910-60-P