**[New Format]{.smallcaps}**

**For future versions of this manual, changes to the regulations will
show [highlights]{.mark} for deletions and underline for
[additions]{.underline}.**

**[Amendment Table of Section Revisions for This Version of Part
190]{.smallcaps}**

  ----------------------- -------------------------- ------------------------- -------------------------
  **[Part 190 Amendment   **[Effective Date of       **[Paragraph\             **[In Refference
  Number]{.smallcaps}**   Amendment]{.smallcaps}**   Impact]{.smallcaps}**     to:]{.smallcaps}**

  12                      03/08/05                   190.1, .3, .7, .9, .11,   [Nomenclature Change and
                                                     .203, .211, .213, .215,   Technical
                                                     .223, .225, .227, .229,   Amendments]{.smallcaps}
                                                     .233, .235, .301, .305,   
                                                     .307, .309                

  \[13\]\*                04/28/08                   190.5, .9, .11, .209,     [Administrative
                                                     .227, .239, .305, .309,   Procedures, Updates and
                                                     .341                      Technical
                                                                               Amendments]{.smallcaps}
  ----------------------- -------------------------- ------------------------- -------------------------

\*PHMSA quit numbering their new amendments. For the purposes of
tracking, T&Q is maintaining a numbering system.

Subpart A--General

Sec.

190.1 Purpose and scope.

190.3 Definitions.

190.5 Service.

190.7 Subpoenas; witness fees.

190.9 Petitions for finding or approval.

190.11 Availability of informal guidance and interpretive assistance.

**Subpart B--Enforcement**

190.201 Purpose and scope.

190.203 Inspections and investigations.

190.205 Warning letters.

190.207 Notice of probable violation.

190.209 Response options.

190.211 Hearing.

190.213 Final Order.

190.215 Petitions for reconsideration.

**Compliance Orders**

190.217 Compliance orders generally.

190.219 Consent order.

**Civil Penalties**

190.221 Civil penalties generally.

190.223 Maximum penalties.

190.225 Assessment considerations.

190.227 Payment of penalty.

**Criminal Penalties**

190.229 Criminal penalties generally.

190.231 Referral for prosecution.

**Specific Relief**

190.233 Hazardous facility orders.

190.235 Injunctive action.

190.237 Amendment of plans or procedures.

[190.239 Safety Orders]{.underline}

**Subpart C--Procedures for Adoption of Rules**

190.301 Scope.

190.303 Delegations.

190.305 Regulatory dockets.

190.307 Records.

190.309 Where to file petitions.

190.311 General.

190.313 Initiation of rulemaking.

190.315 Contents of notices of proposal rulemaking.

190.317 Participation by interested persons.

190.319 Petitions for extension of time to comment.

190.321 Contents of written comments.

190.323 Consideration of comments received.

190.325 Additional rulemaking proceedings.

190.327 Hearings.

190.329 Adoption of final rules.

190.331 Petitions for rulemaking.

190.333 Processing of petition.

190.335 Petitions for reconsideration.

190.337 Proceedings on petitions for reconsideration.

190.338 Appeals.

190.339 Direct final rulemaking.

[190.341 Special permits.]{.underline}

**Authority:** 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 60101 *et seq*.; 49
CFR 1.53.

\[Part 190 - Org., 45 FR 20413, Mar. 27,1980 as amended by Amdt. 190-1,
53 FR 1633, Jan. 21, 1988; Amdt. 190-2, 54 FR 32342, Aug. 7, 1989; Amdt.
190-5, 59 FR 17275, Apr. 12, 1994; Amdt. 190-6, 61 FR 18512, Apr. 26,
1996; Amdt. 190-8, 61 FR 50907, Sept. 27, 1996; Amdt. 190-9, 62 FR
24055, May 2, 1997[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005; Amdt.
190-\[13\], 73 FR 16562, Mar. 28, 2008]{.underline}\]

Subpart A--General

**§190.1 Purpose and scope.**

\(a\) This part prescribes procedures used by the [Research and Special
Programs Administration]{.mark} [Pipeline and Hazardous Materials Safety
Administration]{.underline} in carrying out their duties regarding
pipeline safety under 49 U.S.C. 60101 *et seq.* (the pipeline safety
laws) and 49 U.S.C. 5101 *et seq.* (the hazardous material
transportation laws).

\(b\) This subpart defines certain terms and prescribes procedures that
are applicable to each proceeding described in this part.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996[;
Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.3 Definitions.**

As used in this part:

***Administrator*** means the Administrator, [Research and Special
Programs Administration]{.mark} [Pipeline and Hazardous Materials Safety
Administration]{.underline} or his or her delegate.

***Hearing*** means an informal conference or a proceeding for oral
presentation. Unless otherwise specifically prescribed in this part, the
use of \"hearing\" is not intended to require a hearing on the record in
accordance with section 554 of title 5, U.S.C.

***OPS*** means the Office of Pipeline Safety, which is part of the
[Research and Special Programs Administration]{.mark} [Pipeline and
Hazardous Materials Safety Administration]{.underline}, U.S. Department
of Transportation.

***Person*** means any individual, firm, joint venture, partnership,
corporation, association, State, municipality, cooperative association,
or joint stock association, and includes any trustee, receiver,
assignee, or personal representative thereof.

[***PHMSA*** means the Pipeline and Hazardous Materials Safety
Administration of the United States Department of
Transportation.]{.underline}

***Presiding Official*** means the person who conducts any hearing
relating to civil penalty assessments, compliance orders or hazardous
facility orders.

***Regional Director*** means the head of any one of the Regional
Offices of the Office of Pipeline Safety, or a designee appointed by the
Regional Director. Regional Offices are located in Washington, DC
(Eastern Region); Atlanta, Georgia (Southern Region); Kansas City,
Missouri (Central Region); Houston, Texas (Southwest Region); and
Lakewood, Colorado (Western Region).

***Respondent*** means a person upon whom the OPS has served a notice of
probable violation.

[***RSPA*** means the Research and Special Programs Administration of
the United States Department of Transportation.]{.mark}

***State*** means a State of the United States, the District of Columbia
and the Commonwealth of Puerto Rico.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996;
Amdt. 190-11, 68 FR 11748, Mar. 12, 2003[; Amdt. 190-12, 70 FR 11135,
Mar. 8, 2005]{.underline}\]

**§190.5 Service.**

\(a\) [Each order, notice, or other document required to be served under
this part shall be served personally or by registered or certified
mail.]{.mark}[Each order, notice, or other document required to be
served under this part shall be served personally, by registered or
certified mail, overnight courier, or electronic transmission by
facsimile or other electronic means that includes reliable
acknowledgement of actual receipt.]{.underline}

\(b\) Service upon a person\'s duly authorized representative or agent
constitutes service upon that person.

\(c\) [Service by registered or certified mail is complete upon mailing.
An official U.S. Postal Service receipt from the registered or certified
mailing constitutes prima facie evidence of service.]{.mark}[Service by
registered or 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.]{.underline}

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980[; Amdt. 190-\[13\], 73 FR
16562, Mar. 28, 2008]{.underline}.\]

**§190.7 Subpoenas; witness fees.**

\(a\) The Administrator, [RSPA]{.mark} [PHMSA]{.underline}, the Chief
Counsel, [RSPA]{.mark} [PHMSA]{.underline}, or the official designated
by the Administrator, [RSPA]{.mark} [PHMSA]{.underline} to preside over
a hearing convened in accordance with this part, may sign and issue
subpoenas either on their own initiative or, upon request and adequate
showing by any person participating in the 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
or registered mail.

\(d\) Service of a subpoena upon the person named therein shall be made
by delivering a copy of the subpoena to such person and by tendering 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 the person in
charge thereof, leaving them at the person\'s dwelling place or usual
place of abode with some person of suitable age and discretion then
residing therein, by mailing them by registered or 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 effected 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 registered or 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
[RSPA]{.mark} [PHMSA]{.underline} 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, [RSPA]{.mark} [PHMSA]{.underline} 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,
[RSPA]{.mark} [PHMSA]{.underline}, 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 [RSPA]{.mark} [PHMSA]{.underline} 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 [RSPA]{.mark} [PHMSA]{.underline}, or
both.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996;
Amdt. 190-10, 63 FR 7721, Feb. 17, 1998[; Amdt. 190-12, 70 FR 11135,
Mar. 8, 2005]{.underline}\]

**§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
[Research and Special Programs Administration]{.mark} [Pipeline and
Hazardous Materials Safety Administration]{.underline}, 400 7th Street,
SW., Washington, DC 20590.

\(2\) For operators seeking a finding or approval involving interstate
pipeline transportation, petitions must be sent to the [Research and
Special Programs Administration]{.mark} [Pipeline and Hazardous
Materials Safety Administration]{.underline}, [400 7th Street
SW]{.mark}[1200 New Jersey Avenue, SE]{.underline}., 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 17275, Apr. 12, 1994 as amended by Amdt. 190-6, 61
FR 18512, Apr. 26, 1996[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005; Amdt.
190-\[13\], 73 FR 16562, Mar. 28, 2008]{.underline}\]

§190.11 Availability of informal guidance and interpretive assistance.

\(a\) Availability of telephonic and Internet assistance. (1)
[RSPA]{.mark} [PHMSA]{.underline} has established a website on the
Internet and a telephone line at the Office of Pipeline Safety
headquarters where small operators and others can obtain information on
and advice about compliance with pipeline safety regulations, 49 CFR
parts 190-199. The website and telephone line are staffed by personnel
from [RSPA]{.mark} [PHMSA\'s]{.underline} Office of Pipeline Safety from
9:00 a.m. through 5:00 p.m., Eastern time, Monday through Friday, except
Federal holidays. When the lines are not staffed, individuals may leave
a recorded voicemail message, or post a message at the OPS website. All
messages will receive a response by the following business day. The
telephone number for the OPS information line is (202)
366-[0918]{.mark}[4595]{.underline} and the OPS website can be accessed
via the Internet at http://www.ops.dot.gov.

\(2\) [RSPA]{.mark} [PHMSA\'s]{.underline} Office of the Chief Counsel
(OCC) is available to answer questions concerning Federal pipeline
safety law, 49 U.S.C. 60101 *et seq.* OCC may be contacted by telephone
(202-366-4400) from 9:00 a.m. to 4:00 p.m. Eastern time, Monday through
Friday, except Federal holidays. Information and guidance concerning
Federal pipeline safety law may also be obtained by contacting OCC via
the Internet at http://rspa-atty.dot.gov.

\(b\) Availability of Written Interpretations. (1) A written regulatory
interpretation, response to a question, or an opinion concerning a
pipeline safety issue may be obtained by submitting a written request to
the Office of Pipeline Safety ([DPS-10]{.mark}[PHP-30]{.underline}),
[RSPA]{.mark} [PHMSA]{.underline}, U.S. Department of Transportation,
[400 Seventh Street, SW]{.mark}[1200 New Jersey Avenue,
SE.,]{.underline} Washington, DC 20590-0001. The requestor must include
his or her return address and should also include a daytime telephone
number. [Written requests should be submitted at least 120 days before
the time the requestor needs the response.]{.underline}

\(2\) A written interpretation regarding Federal pipeline safety law, 49
U.S.C 60101 *et seq.*, may be obtained from the Office of the Chief
Counsel, [RSPA]{.mark} [PHMSA]{.underline}, U.S. Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. The
requestor must include his or her return address and should also include
a daytime telephone number.

\[Amdt. 190-9, 62 FR 24055, May 2, 1997 as amended by Amdt. 190-9A, 62
FR 34415, June 26, 1997[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005; Amdt.
190-\[13\], 73 FR 16562, Mar. 28, 2008]{.underline}\]

**Subpart B--Enforcement**

**§190.201 Purpose and scope.**

\(a\) This subpart describes the enforcement authority and sanctions
exercised by the Associate Administrator, OPS for achieving and
maintaining pipeline safety. It also prescribes the procedures governing
the exercise of that authority and the imposition of those sanctions.

\(b\) A person who is the subject of action pursuant to this subpart may
be represented by legal counsel at all stages of the proceeding.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996\]

**§190.203 Inspections [and investigations]{.underline}.**

\(a\) Officers, employees, or agents authorized by the Associate
Administrator for Pipeline Safety, [RSPA]{.mark} [PHMSA]{.underline},
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.,* or regulations or
orders issued thereunder.

\(b\) 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 Administrator, [RSPA]{.mark}
[PHMSA]{.underline} or his designee.

\(c\) If, after an inspection, the Associate Administrator, OPS believes
that further information is needed to determine appropriate action, the
Associate Administrator, OPS may send the owner or operator a \"Request
for Specific Information\" to be answered within 45 days after receipt
of the letter.

\(d\) To the extent necessary to carry out his responsibilities under 49
U.S.C. 60101 *et seq.*, the Administrator, [RSPA]{.mark}
[PHMSA]{.underline} or the Associate Administrator, OPS may require
testing of portions of pipeline facilities that have been involved in,
or affected by, an accident. However, before exercising this authority,
the Administrator, [RSPA]{.mark} [PHMSA]{.underline} or the Associate
Administrator, OPS shall make every effort to negotiate a mutually
acceptable plan with the owner of those facilities and, where
appropriate, the National Transportation Safety Board for performing the
testing.

[(e) If a representative of the DOT investigates an incident involving a
pipeline facility, OPS may request that the operator make available to
the representative all records and information that pertain to the
incident in any way, including integrity management plans and test
results, and that the operator afford all reasonable assistance in the
investigation.]{.underline}

([e]{.mark}[f]{.underline}) When the information obtained from an
inspection or from other appropriate sources indicates that further OPS
action is warranted, the OPS issues a warning letter under §190.205 or
initiates one or more of the enforcement proceedings prescribed in
§§190.207 through 190.235.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-3, 56 FR 31090, July 9, 1991; Amdt.
190-6, 61 FR 18512, Apr. 26, 1996; Amdt. 190-7, 61 FR 27789, June 3,
1996; Amdt. 190-10, 63 FR 7721, Feb. 17, 1998[; Amdt. 190-12, 70 FR
11135, Mar. 8, 2005]{.underline}\]

**§190.205 Warning letters.**

Upon determining that a probable violation of 49 U.S.C. 60101 *et seq.*
or any regulation or order issued thereunder has occurred, the Associate
Administrator, OPS may issue a Warning Letter notifying the owner or
operator of the probable violation and advising the owner or operator to
correct it or be subject to enforcement action under §§190.207 through
190.235.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996;
Amdt. 190-6A, 61 FR 38403, July 24, 1996\]

**§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*. or any regulation or order issued thereunder.

\(b\) 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
§190.209;

\(3\) 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 Associate Administrator, OPS 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 or
proposes an increased civil penalty amount or new or additional remedial
action under §190.217, the respondent shall have the opportunity to
respond under §190.209.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996\]

**§190.209 Response options.**

Within 30 days of receipt of a notice of probable violation, the
respondent shall respond to the Regional Director who issued the notice
in the following way:

\(a\) When the notice contains a proposed civil penalty--

\(1\) Pay the proposed civil penalty as provided in §190.227 and close
the case with prejudice to the respondent;

\(2\) Submit written explanations, information or other materials in
answer to the allegations or in mitigation of the proposed civil
penalty; or

\(3\) Request a hearing under §190.211.

\(b\) When the notice contains a proposed compliance order--

\(1\) Agree to the proposed compliance order;

\(2\) Request the execution of a consent order under §190.219;

\(3\) 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

\(4\) Request a hearing under §190.211.

\(c\) Failure of the respondent to respond in accordance with paragraph
(a) of this section or, when applicable, paragraph (c) 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 §190.213.

[(d) All materials submitted by operators in response to enforcement
actions may be placed on publicly accessible Web sites. A Respondent
that seeks 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 an explanation for each redaction.]{.underline}

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-1, 53 FR1633, Jan. 21, 1988; Amdt.
190-6, 61 FR 18512, Apr. 26, 1996; Amdt. 190-7, 61 FR 27789, June 3,
1996; Amdt. 190-10, 63 FR 7721, Feb. 17, 1998[; Amdt. 190-\[13\], 73 FR
16562, Mar. 28, 2008]{.underline}\]

**§190.211 Hearing.**

\(a\) A request for a hearing provided for in this part must be
accompanied by a statement of the issues that the respondent intends to
raise at the hearing. The issues may relate to the allegations in the
notice, the proposed corrective action (including a proposed amendment,
a proposed compliance order, or a proposed hazardous facility order), or
the proposed civil penalty amount. A respondent\'s failure to specify an
issue may result in waiver of the respondent\'s right to raise that
issue at the hearing. The respondent\'s request must also indicate
whether or not the respondent will be represented by counsel at the
hearing.

\(b\) A telephone hearing will be held if the amount of the proposed
civil penalty or the cost of the proposed corrective action is less than
\$10,000, unless the respondent submits a written request for an
in-person hearing. Hearings are held in a location agreed upon by the
presiding official, OPS and the respondent.

\(c\) An attorney from the Office of the Chief Counsel, [Research and
Special Programs Administration]{.mark} [Pipeline and Hazardous
Materials Safety Administration]{.underline}, serves as the presiding
official at the hearing.

\(d\) The hearing is conducted informally without strict adherence to
rules of evidence. The respondent may submit any relevant information
and material and call witnesses on the respondent\'s behalf. The
respondent may also examine the evidence and witnesses presented by the
government . No detailed record of a hearing is prepared.

\(e\) Upon request by respondent, and whenever practicable, the material
in the case file pertinent to the issues to be determined is provided to
the respondent 30 days before the hearing. The respondent may respond to
or rebut this material at the hearing.

\(f\) During the hearing, the respondent may offer any facts,
statements, explanations, documents, testimony or other items which are
relevant to the issues under consideration.

\(g\) At the close of the respondent\'s presentation, the presiding
official may present or allow the presentation of any OPS rebuttal
information. The respondent may then respond to that information.

\(h\) After the evidence in the case has been presented, the presiding
official shall permit argument on the issues under consideration.

\(i\) The respondent may also request an opportunity to submit further
written material for inclusion in the case file. The presiding official
shall allow a reasonable time for the submission of the material and
shall specify the date by which it must be submitted. If the material is
not submitted within the time prescribed, the case shall proceed to
final action without the material.

\(j\) After submission of all materials during and after the hearing,
the presiding official shall prepare a written recommendation as to
final action in the case. This recommendation, along with any material
submitted during and after the hearing, shall be included in the case
file which is forwarded to the Associate Administrator, OPS for final
administrative action.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-3, 56 FR 31090, July 9, 1991; Amdt.
190-6, 61 FR 18512, Apr. 26, 1996; Amdt. 190-7, 61 FR 27789, June 3,
1996[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.213 Final order.**

\(a\) After a hearing under §190.211 or, if no hearing has been held,
after expiration of the 30 day response period prescribed in §190.209,
the case file of an enforcement proceeding commenced under §190.207 is
forwarded to the Associate Administrator, OPS for issuance of a final
order.

\(b\) The case file of an enforcement proceeding commenced under
§190.207 includes:

\(1\) The inspection reports and any other evidence of alleged
violations;

\(2\) A copy of the notice of probable violation issued under §190.207;

\(3\) Material submitted by the respondent in accord with §190.209 in
response to the notice of probable violation;

\(4\) The Regional Director\'s evaluation of response material submitted
by the respondent and recommendation for final action to be taken under
this section; and

\(5\) In cases involving a §190.211 hearing, any material submitted
during and after the hearing and the presiding official\'s
recommendation for final action to be taken under this section.

\(c\) Based on a review of a case file described in paragraph (b) of
this section, the Associate Administrator, OPS shall issue a final order
that 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.

\(d\) Except as provided by §190.215, an order issued under this section
regarding an enforcement proceeding is considered final administrative
action on that enforcement proceeding.

\(e\) [It is the policy of the Associate Administrator, OPS to issue a
final order under this section within 45 days of receipt of the case
file, unless it is found impracticable to take action within that time.
In cases where it is so found and the delay beyond that period is
expected to be substantial, notice of that fact and the date by which it
is expected that action will be taken is issued to the
respondent.]{.mark} [It is the policy of the Associate Administrator,
OPS to issue a final order under this section expeditiously. 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.]{.underline}

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996[;
Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.215 Petitions for reconsideration.**

\(a\) A respondent may petition the Associate Administrator, OPS for
reconsideration of a final order issued under §190.213. It is requested,
but not required, that three copies be submitted. The petition must be
received no later than 20 days after service of the final order upon the
respondent. Petitions received after that time will not be considered.
The petition must contain a brief statement of the complaint and an
explanation as to why the effectiveness of the final order should be
stayed.

\(b\) If the respondent requests the consideration of additional facts
or arguments, the respondent must submit the reasons they were not
presented prior to issuance of the final order .

\(c\) The Associate Administrator, OPS does not consider repetitious
information, arguments, or petitions.

\(d\) The filing of a petition under this section stays the payment of
any civil penalty assessed. However, unless the Associate Administrator,
OPS otherwise provides, the order, including any required corrective
action, is not stayed.

\(e\) The Associate Administrator, OPS may grant or deny, in whole or in
part, any petition for reconsideration without further proceedings. In
the event the Associate Administrator, OPS reconsiders a final order, 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, OPS as deemed
appropriate .

\(f\) [It is the policy of the Associate Administrator, OPS to issue
notice of the action taken on a petition for reconsideration within 20
days after receipt of the petition, unless it is found impracticable to
take action within that time. In cases where it is so found and delay
beyond that period is expected to be substantial, notice of that fact
and the date by which it is expected that action will be taken is issued
to the respondent.]{.mark} [It is the policy of the Associate
Administrator, OPS to issue notice of the action taken on a petition for
reconsideration expeditiously. 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.]{.underline}

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996;
Amdt. 190-7, 61 FR 27789, June 3, 1996[; Amdt. 190-12, 70 FR 11135, Mar.
8, 2005]{.underline}\]

**[Compliance Orders]{.smallcaps}**

**§190.217 Compliance orders generally.**

When the Associate Administrator, OPS has reason to believe that a
person is engaging in conduct which involves a violation of 49 U.S.C.
60101 *et seq.* or any regulation issued thereunder, and if the nature
of the violation, and the public interest warrant, the Associate
Administrator, OPS may conduct proceedings under §§190.207 through
190.213 of this part to determine the nature and extent of the
violations and to issue an order directing compliance.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996\]

**§190.219 Consent order.**

\(a\) At any time before the issuance of a compliance order under
§190.213 the Associate Administrator, OPS and the respondent may agree
to dispose of the case by joint execution of a consent order. Upon such
joint execution, the consent order shall be 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 acknowledgment that the notice of probable violation 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.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996\]

**[Civil Penalties]{.smallcaps}**

**§190.221 Civil penalties generally.**

When the Associate Administrator, OPS has reason to believe that a
person has committed an act which is a violation of any provision of the
49 U.S.C. 60101 *et seq.* or any regulation or order issued thereunder,
proceedings under §§190.207 through 190.213 may be conducted to
determine the nature and extent of the violations and to assess and, if
appropriate, compromise a civil penalty.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996\]

**§190.223 Maximum penalties.**

\(a\) Any person who is determined to have violated a provision of 49
U.S.C. 60101 *et seq*. or any regulation or order issued thereunder, is
subject to a civil penalty not to exceed [\$25,000]{.mark}
[\$100,000]{.underline} for each violation for each day the violation
continues except that the maximum civil penalty may not exceed
[\$500,000]{.mark} [\$1,000,000]{.underline} for any related series of
violations.

\(b\) Any person who knowingly violates a regulation or order under this
subchapter applicable to offshore gas gathering lines issued under the
authority of 49 U.S.C. 5101 *et seq.* is liable for a civil penalty of
not more than \$25,000 for each violation, and if any such violation is
a continuing one, each day of violation constitutes a separate offense.

\(c\) Any person who is determined to have violated any standard or
order under 49 U.S.C. 60103 shall be subject to a civil penalty of not
to exceed \$50,000, which penalty shall be in addition to any 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 shall be subject to a civil penalty not to exceed
\$1,000, which shall be in addition to any other penalties to which such
person may be subject under paragraph (a) of this section.]{.underline}

([d]{.mark}[e]{.underline}) No person shall be subject to a civil
penalty under this section for the violation of any requirement of this
subchapter and an order issued under §190.217, §190.219 or §190.233 if
both violations are based on the same act.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-2, 54 FR 32343, Aug. 7, 1989; Amdt.
190-6, 61 FR 18512, Apr. 26, 1996; Amdt. 190-6A, 61 FR 38403, July 24,
1996[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.225 Assessment considerations.**

[The Associate Administrator, OPS assesses a civil penalty under this
part only after considering:]{.mark}

[(a) The nature, circumstances and gravity of the violation;]{.mark}

[(b) The degree of the respondent\'s culpability;]{.mark}

[(c) The respondent\'s history of prior offenses;]{.mark}

[(d) The respondent\'s ability to pay;]{.mark}

[(e) Any good faith by the respondent in attempting to achieve
compliance;]{.mark}

[(f) The effect on the respondent\'s ability to continue in business;
and]{.mark}

[(g) Such other matters as justice may require.]{.mark}

[In determining the amount of a civil penalty under this
part,]{.underline}

[(a) The Associate Administrator, OPS shall consider:]{.underline}

[(1) The nature, circumstances and gravity of the violation, including
adverse impact on the environment;]{.underline}

[(2) The degree of the respondent\'s culpability;]{.underline}

[(3) The respondent\'s history of prior offenses;]{.underline}

[(4) The respondent\'s ability to pay;]{.underline}

[(5) Any good faith by the respondent in attempting to achieve
compliance;]{.underline}

[(6) The effect on the respondent\'s ability to continue in business;
and]{.underline}

[(b) The Associate Administrator, OPS may consider:]{.underline}

[(1) The economic benefit gained from violation, if readily
ascertainable, without any reduction because of subsequent damages;
and]{.underline}

[(2) Such other matters as justice may require.]{.underline}

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996[;
Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§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 this case) payable to
\"U.S. Department of Transportation\" to the Federal Aviation
Administration, Mike Monroney Aeronautical Center, Financial Operations
Division (AMZ-[320 [120]{.underline}]{.mark}[341]{.underline}), 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. Payments exceeding \$10,000 must be made by wire transfer.
[Payments, or in the case of wire transfers, notices of payment, must be
sent to the Chief, General Accounting Branch (M-86.2), Accounting
Operations Division, Office of the Secretary, room 2228, Department of
Transportation, 400 Seventh Street, SW, Washington, DC 20590.]{.mark}

\(b\) 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 C.F.R. Part 89.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-1, 53 FR 1633, Jan. 21, 1988; Amdt.
190-6, 61 FR 18512, Apr. 26, 1996; Amdt. 190-7, 61 FR 27789, June 3,
1996[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005; Amdt. 190-\[13\], 73 FR
16562, Mar. 28, 2008]{.underline}\]

**[Criminal Penalties]{.smallcaps}**

**§190.229 Criminal penalties generally.**

\(a\) Any person who willfully and knowingly violates a provision of 49
U.S.C. 60101 *et seq.* or any regulation or order issued thereunder
shall upon conviction be subject for each offense to a fine of not more
than \$25,000 and imprisonment for not more than five years, or both.

\(b\) Any person who willfully violates a regulation or order under this
subchapter issued under the authority 49 U.S.C. 5101 *et seq.* as
applied to offshore gas gathering lines shall upon conviction be subject
for each offense to a fine of not more than \$25,000, imprisonment for a
term not to exceed 5 years, or both.

\(c\) Any person who willfully and knowingly injures or destroys, or
attempts to injure or destroy, any interstate transmission
facility[,]{.underline} [or]{.mark} any interstate pipeline facility [,
or any intrastate pipeline facility used in interstate or foreign
commerce or in any activity affecting interstate or foreign
commerce]{.underline} (as those terms are defined in 49 U.S.C. 60101 *et
seq.*) shall, upon conviction, be subject for each offense to a fine of
not more than \$25,000, imprisonment for a term not to exceed 15 years,
or both.

\(d\) Any person who willfully and knowingly defaces, damages, removes,
destroys any pipeline sign, right-of-way marker, or marine buoy required
by 49 U.S.C. 60101 *et seq.* or 49 U.S.C. 5101 *et seq.*, or any
regulation or order issued thereunder shall, upon conviction, be
subject, for each offense to a fine of not more than \$5,000,
imprisonment for a term not to exceed 1 year, or both.

[(e) 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]{.underline}

[(1) Subsequently damages a pipeline facility resulting in death,
serious bodily harm, or property damage exceeding \$50,000;]{.underline}

[(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]{.underline}

[(3) Subsequently damages a hazardous liquid pipeline facility that
results in the release of more than 50 barrels of product; shall, upon
conviction, be subject for each offense to a fine of not more than
\$5,000, imprisonment for a term not to exceed 5 years, or
both.]{.underline}

([e]{.mark}[f]{.underline}) 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 190.229 if both violations are based on the same act.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-2, 54 FR 32343, Aug. 7, 1989; Amdt.
190-4, 56 FR 63770, Dec. 5, 1991; Amdt. 190-6, 61 FR 18512, Apr. 26,
1996[; Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.231 Referral for prosecution.**

If an employee of [Research and Special Programs Administration]{.mark}
[Pipeline and Hazardous Materials Safety Administration]{.underline}
becomes aware of any actual or possible activity subject to criminal
penalties under §190.229, the employee reports it to the Office of the
Chief Counsel, Research and Special Programs Administration, U.S.
Department of Transportation, Washington, DC 20590. The Chief Counsel
refers the report to OPS for investigation. Upon completion of the
investigation and if appropriate, the Chief Counsel refers the report to
the Department of Justice for criminal prosecution of the offender.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996[;
Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**[Specific Relief]{.smallcaps}**

**§190.233 Hazardous facility orders.**

[(a) Except as provided by paragraph (b) of this section, if the
Associate Administrator, OPS finds, after reasonable notice and
opportunity for hearing in accord with paragraph (c) of this section,
and §190.211(a), a particular pipeline facility to be hazardous to life
or property, the Associate Administrator, OPS shall issue an order
pursuant to this section requiring the owner or operator of the facility
to take corrective action. Corrective action may include suspended or
restricted use of the facility, physical inspection, testing, repair,
replacement, or other action, as appropriate.]{.mark}

[(b) The Associate Administrator, OPS may waive the requirement for
notice and hearing under paragraph (a) of this section before issuing an
order pursuant to this section when the Associate Administrator, OPS
determines that the failure to do so would result in the likelihood of
serious harm to life or property. However, the Associate Administrator,
OPS shall include in the order an opportunity for hearing as soon as
practicable after issuance of the order. The provisions of paragraph
(c)(2) of this section apply to an owner or operator\'s decision to
exercise such an opportunity for hearing. The purpose of such a
post-order hearing is for the Associate Administrator, OPS to determine
whether the order should remain in effect or be rescinded or suspended
in accord with paragraph (g) of this section.]{.mark}

[(c) Notice and hearing:]{.mark}

[(1) Written notice that OPS intends to issue an order under this
section shall be served in accordance with §190.5, upon the owner or
operator of an alleged hazardous facility. The notice shall allege the
existence of a hazardous facility, stating the facts and circumstances
supporting the issuance of a \"hazardous facility order\", and providing
the owner or operator an opportunity for a hearing, identifying the time
and location of the hearing.]{.mark}

[(2) An owner or operator elects to exercise his opportunity for a
hearing under this section, by notifying the Associate Administrator,
OPS of that election in writing within 10 days of service of the notice
provided under paragraph (c)(1) of this section or, under paragraph (b)
of this section when applicable. Absence of such written notification
waives an owner or operator\'s opportunity for a hearing and allows the
Associate Administrator, OPS to proceed to issue a \"hazardous facility
order\" in accordance with paragraphs (d) through (h) of this
section.]{.mark}

[(3) A hearing under this section shall be presided over by an attorney
from the Office of Chief Counsel, Research and Special Programs
Administration acting as Presiding Official, and conducted without
strict adherence to rules of evidence. The Presiding Official presents
the allegations contained in the notice issued under this section. The
owner or operator of the alleged hazardous facility may submit any
relevant information or materials, call witnesses and present arguments
on the issue of whether or not a \"hazardous facility order\" should be
issued.]{.mark}

[(4) Within 48 hours after conclusion of a hearing under this section,
the Presiding Official shall submit a recommendation to the Associate
Administrator, OPS as to whether or not a \"hazardous facility order\"
is required. Upon receipt of the recommendation, the Associate
Administrator, OPS shall proceed in accordance with paragraphs (d)
through (h) of this section. If the Associate Administrator, OPS finds
the facility to be hazardous to life or property the Associate
Administrator, OPS shall issue an order in accordance with this section.
If the Associate Administrator, OPS does not find the facility to be
hazardous to life or property, the Associate Administrator, OPS shall
dismiss the allegations contained in the notice, and promptly notify the
owner or operator in writing by service as prescribed in §190.5.]{.mark}

[(d) The Associate Administrator, OPS may find a pipeline facility to be
hazardous under paragraph (a) of this section:]{.mark}

[(1) If under the facts and circumstances the Associate Administrator,
OPS determines the particular facility is hazardous to life or property;
or]{.mark}

[(2) If the pipeline facility or a component thereof has been
constructed or operated with any equipment, material, or technique which
the Associate Administrator, OPS determines is hazardous to life or
property, unless the operator involved demonstrates to the satisfaction
of the Associate Administrator, OPS that, under the particular facts and
circumstances involved, such equipment, material, or technique is not
hazardous to life or property.]{.mark}

[(e) In making a determination under paragraph (d) of this section, the
Associate Administrator, OPS shall consider, if relevant:]{.mark}

[(1) The characteristics of the pipe and other equipment used in the
pipeline facility involved, including its age, manufacturer, physical
properties including its age, manufacturer, physical properties
(including its resistance to corrosion and deterioration), and the
method of its manufacture, construction or assembly;]{.mark}

[(2) The nature of the materials transported by such facility (including
their corrosive and deteriorate qualities), the sequence in which such
materials are transported, and the pressure required for such
transportation;]{.mark}

[(3) The aspects of the 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;]{.mark}

[(4) Any recommendation of the National Transportation Safety Board
issued in connection with any investigation conducted by the Board;
and]{.mark}

[(5) Such other factors as the Associate Administrator, OPS may consider
appropriate.]{.mark}

[(f) The order shall contain the following information:]{.mark}

[(1) A finding that the pipeline facility is hazardous to life or
property.]{.mark}

[(2) The relevant facts which form the basis for that finding.]{.mark}

[(3) The legal basis for the order.]{.mark}

[(4) The nature and description of particular corrective action required
of the respondent.]{.mark}

[(5) The date by which the required action must be taken, or completed
and, where appropriate, the duration of the order.]{.mark}

[(6) If a hearing has been waived pursuant to paragraph (b) of this
section, a statement that an opportunity for a hearing is provided at a
particular location and at a certain time after issuance of the
order.]{.mark}

[(g) The Associate Administrator, OPS shall rescind or suspend a
\"hazardous facility order\" whenever the Associate Administrator, OPS
determines that the facility is no longer hazardous to life or property.
When appropriate, however, such a rescission or suspension may be
accompanied by a notice of probable violation issued under
§190.207.]{.mark}

[(h) At any time after an order issued under this section has become
effective, the Associate Administrator, OPS may request the Attorney
General to bring an action for appropriate relief in accordance with
§190.235.]{.mark}

[(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.]{.mark}

[(a) Except as provided by paragraph (b) of this section, if the
Associate Administrator, OPS finds, after reasonable notice and
opportunity for hearing in accord with paragraph (c) of this section and
§190.211(a), a particular pipeline facility to be hazardous to life,
property, or the environment, the Associate Administrator, OPS shall
issue an order pursuant to this section requiring the owner or operator
of the facility to take corrective action. Corrective action may include
suspended or restricted use of the facility, physical inspection,
testing, repair, replacement, or other appropriate action.]{.underline}

[(b) The Associate Administrator, OPS may waive the requirement for
notice and opportunity for hearing under paragraph (a) of this section
before issuing an order pursuant to this section when the Associate
Administrator, OPS determines that the failure to do so would result in
the likelihood of serious harm to life, property, or the environment.
However, the Associate Administrator, OPS shall provide an opportunity
for a hearing as soon as is practicable after the issuance of a
compliance order. The provisions of paragraph (c)(2) of this section
apply to an owner or operator\'s decision to exercise its opportunity
for a hearing. The purpose of such a post-order hearing is for the
Associate Administrator, OPS to determine whether a compliance order
should remain in effect or be rescinded or suspended in accord with
paragraph (g) of this section.]{.underline}

[(c) Notice and hearing:]{.underline}

[(1) Written notice that OPS intends to issue an order under this
section shall be served upon the owner or operator of an alleged
hazardous facility in accordance with §190.5. The notice shall allege
the existence of a hazardous facility and state the facts and
circumstances supporting the issuance of a corrective action order. The
notice shall also provide the owner or operator with the opportunity for
a hearing and shall identify a time and location where a hearing may be
held.]{.underline}

[(2) An owner or operator that elects to exercise its opportunity for a
hearing under this section must notify the Associate Administrator, OPS
of that election in writing within 10 days of service of the notice
provided under paragraph (c)(1) of this section, or under paragraph (b)
of this section when applicable. The absence of such written
notification waives an owner or operator\'s opportunity for a hearing
and allows the Associate Administrator, OPS to issue a corrective action
order in accordance with paragraphs (d) through (h) of this
section.]{.underline}

[(3) A hearing under this section shall be presided over by an attorney
from the Office of Chief Counsel, Pipeline and Hazardous Materials
Safety Administration, acting as Presiding Official, and conducted
without strict adherence to formal rules of evidence. The Presiding
Official presents the allegations contained in the notice issued under
this section. The owner or operator of the alleged hazardous facility
may submit any relevant information or materials, call witnesses, and
present arguments on the issue of whether or not a corrective action
order should be issued.]{.underline}

[(4) Within 48 hours after conclusion of a hearing under this section,
the Presiding Official shall submit a recommendation to the Associate
Administrator, OPS as to whether or not a corrective action order is
required. Upon receipt of the recommendation, the Associate
Administrator, OPS shall proceed in accordance with paragraphs (d)
through (h) of this section. If the Associate Administrator, OPS finds
the facility is or would be hazardous to life, property, or the
environment, the Associate Administrator, OPS shall issue a corrective
action order in accordance with this section. If the Associate
Administrator, OPS does not find the facility is or would be hazardous
to life, property, or the environment, the Associate Administrator shall
withdraw the allegation of the existence of a hazardous facility
contained in the notice, and promptly notify the owner or operator in
writing by service as prescribed in §190.5.]{.underline}

[(d) The Associate Administrator, OPS may find a pipeline facility to be
hazardous under paragraph (a) of this section:]{.underline}

[(1) If under the facts and circumstances the Associate Administrator,
OPS determines the particular facility is hazardous to life, property,
or the environment; or]{.underline}

[(2) If the pipeline facility or a component thereof has been
constructed or operated with any equipment, material, or technique which
the Associate Administrator, OPS determines is hazardous to life,
property, or the environment, unless the operator involved demonstrates
to the satisfaction of the Associate Administrator, OPS that, under the
particular facts and circumstances involved, such equipment, material,
or technique is not hazardous.]{.underline}

[(e) In making a determination under paragraph (d) of this section, the
Associate Administrator, OPS shall consider, if relevant:]{.underline}

[(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;]{.underline}

[(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;]{.underline}

[(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;]{.underline}

[(4) Any recommendation of the National Transportation Safety Board
issued in connection with any investigation conducted by the Board;
and]{.underline}

[(5) Such other factors as the Associate Administrator, OPS may consider
appropriate.]{.underline}

[(f) A corrective action order shall contain the following
information:]{.underline}

[(1) A finding that the pipeline facility is hazardous to life,
property, or the environment.]{.underline}

[(2) The relevant facts which form the basis of that
finding.]{.underline}

[(3) The legal basis for the order.]{.underline}

[(4) The nature and description of any particular corrective action
required of the respondent.]{.underline}

[(5) The date by which the required corrective action must be taken or
completed and, where appropriate, the duration of the
order.]{.underline}

[(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.]{.underline}

[(g) The Associate Administrator, OPS shall rescind or suspend a
corrective action order whenever the Associate Administrator, OPS
determines that the facility is no longer hazardous to life, property,
or the environment. When appropriate, however, such a rescission or
suspension may be accompanied by a notice of probable violation issued
under §190.207.]{.underline}

[(h) At any time after a corrective action order issued under this
section has become effective, the Associate Administrator, OPS may
request the Attorney General to bring an action for appropriate relief
in accordance with §190.235.]{.underline}

[(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.]{.underline}

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-3, 56 FR 31090, July 9, 1991; Amdt.
190-6, 61 FR 18512, Apr. 26, 1996[; Amdt. 190-12, 70 FR 11135, Mar. 8,
2005]{.underline}\]

**§190.235 Injunctive action.**

Whenever it appears to the Associate Administrator, OPS 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.*
or any regulations issued thereunder, the Administrator, [RSPA]{.mark}
[PHMSA]{.underline}, or the person to whom the authority has been
delegated , may request the Attorney General to bring an action in the
appropriate U.S. District Court for such relief as is necessary or
appropriate, including mandatory ~~of~~ [or]{.underline} prohibitive
injunctive relief, interim equitable relief, [civil
penalties,]{.underline} and punitive damages as provided under 49 U.S.C.
60120 and 49 U.S.C. 5123.

\[Part 190 - Org., 45 FR 20413, Mar. 27, 1980 as amended by Amdt. 190-A,
50 FR 45721, Nov. 1, 1985; Amdt. 190-6, 61 FR 18512, Apr. 26, 1996[;
Amdt. 190-12, 70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.237 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 shall
provide an opportunity for a hearing under §190.211 of this part and
shall specify the alleged inadequacies and the proposed action for
revision of the plans or procedures. The notice shall allow the operator
30 days after receipt of the notice to submit written comments or
request a hearing. After considering all material presented in writing
or at the hearing, the Associate Administrator, OPS shall determine
whether the plans or procedures are inadequate as alleged and order the
required amendment if they are inadequate, or withdraw the notice if
they are not. In determining the adequacy of an operator\'s plans and
procedures, the Associate Administrator, OPS shall consider:

\(1\) Relevant available 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.

\(b\) The amendment of an operator\'s plans or procedures prescribed in
paragraph (a) of this section is in addition to, and may be used in
conjunction with, the appropriate enforcement actions prescribed in this
subpart.

\[Amdt. 190-3, 56 FR 31087, July 9, 1991 as amended by Amdt. 190-6, 61
FR 18512, Apr. 26, 1996\]

**[§190.239 Safety orders.]{.underline}**

[(a) When may PHMSA issue a safety order? If the Associate
Administrator, OPS finds, after notice and an opportunity for hearing
under paragraph (b) of this section, that a particular pipeline facility
has a condition or conditions that pose a pipeline integrity risk to
public safety, property, or the environment, the Associate Administrator
may issue an order requiring the operator of the facility to take
necessary corrective action. Such action may include physical
inspection, testing, repair, risk assessment, risk control, data
integration, information management, or other appropriate action to
remedy the identified risk condition.]{.underline}

[(b) How is an operator notified of the proposed issuance of a safety
order and what are its response options? (1) Notice of proposed safety
order. PHMSA will serve written notice of a proposed safety order under
§190.5 to an operator of the pipeline facility. The notice will allege
the existence of a condition that poses a pipeline integrity risk to
public safety, property, or the environment, and state the facts and
circumstances that support issuing a safety order for the specified
pipeline or portion thereof. The notice will also specify proposed
testing, evaluations, integrity assessment, or other actions to be taken
by the operator and may propose that the operator submit a work plan and
schedule to address the conditions identified in the notice. The notice
will also provide the operator with its response options, including
procedures for requesting informal consultation and a hearing. An
operator receiving a notice will have 30 days to respond.]{.underline}

[(2) Informal consultation. Upon timely request by the operator, PHMSA
will provide an opportunity for informal consultation concerning the
proposed safety order. Such informal consultation shall commence within
30 days, provided that PHMSA may extend this time by request or
otherwise for good cause. Informal consultation provides an opportunity
for the respondent to explain the circumstances associated with the risk
condition(s) identified in the notice and, where appropriate, to present
a proposal for corrective action, without prejudice to the operator\'s
position in any subsequent hearing. If the respondent and PHMSA agree
within 30 days of the informal consultation on a plan for the operator
to address each risk condition, they may enter into a written consent
agreement and PHMSA may issue a consent order incorporating the terms of
the agreement. If a consent agreement is reached, no further hearing
will be provided in the matter and any pending hearing request will be
considered withdrawn. If a consent agreement is not reached within 30
days of the informal consultation (or if informal consultation is not
requested), the Associate Administrator may proceed under paragraphs
(b)(3) through (5) of this section. If PHMSA subsequently determines
that an operator has failed to comply with the terms of a consent order,
PHMSA may obtain any administrative or judicial remedies available under
49 U.S.C. 60101 et seq. and this part. If a consent agreement is not
reached, any admissions made by the operator during the informal
consultation shall be excluded from the record in any subsequent
hearing. Nothing in this paragraph (b) precludes PHMSA from terminating
the informal consultation process if it has reason to believe that the
operator is not engaging in good faith discussions or otherwise
concludes that further consultation would not be productive or in the
public interest.]{.underline}

[(3) Hearing. An operator receiving a notice of proposed safety order
may contest the notice, or any portion thereof, by filing a written
request for a hearing within 30 days following receipt of the notice or
within 10 days following the conclusion of informal consultation that
did not result in a consent agreement, as applicable. In the absence of
a timely request for a hearing, the Associate Administrator may issue a
safety order in the form of the proposed order in accordance with
paragraphs (c) through (g) of this section.]{.underline}

[(4) Conduct of hearing. An attorney from the Office of Chief Counsel,
PHMSA, will serve as the Presiding Official in a hearing under this
section. The hearing will be conducted informally, without strict
adherence to formal rules of evidence in accordance with §190.211. The
respondent may submit any relevant information or materials, call
witnesses, and present arguments on the issue of whether a safety order
should be issued to address the alleged presence of a condition that
poses a pipeline integrity risk to public safety, property, or the
environment.]{.underline}

[(5) Post-hearing action. Following a hearing under this section, the
Presiding Official will submit a recommendation to the Associate
Administrator concerning issuance of a final safety order. Upon receipt
of the recommendation, the Associate Administrator may proceed under
paragraphs (c) through (g) of this section. If the Associate
Administrator finds the facility to have a condition that poses a
pipeline integrity risk to public safety, property, or the environment,
the Associate Administrator will issue a safety order under this
section. If the Associate Administrator does not find that the facility
has such a condition, or concludes that a safety order is otherwise not
warranted, the Associate Administrator will withdraw the notice and
promptly notify the operator in writing by service as prescribed in
§190.5. Nothing in this subsection precludes PHMSA and the operator from
entering into a consent agreement at any time before a safety order is
issued.]{.underline}

[(6) Termination of safety order. Once all remedial actions set forth in
the safety order and associated work plans are completed, as determined
by PHMSA, the Associate Administrator will notify the operator that the
safety order has been lifted. The Associate Administrator shall suspend
or terminate a safety order whenever the Associate Administrator
determines that the pipeline facility no longer has a condition or
conditions that pose a pipeline integrity risk to public safety,
property, or the environment.]{.underline}

[(c) How is the determination made that a pipeline facility has a
condition that poses an integrity risk? The Associate Administrator, OPS
may find a pipeline facility to have a condition that poses a pipeline
integrity risk to public safety, property, or the environment under
paragraph (a) of this section:]{.underline}

[(1) If under the facts and circumstances the Associate Administrator
determines the particular facility has such a condition; or]{.underline}

[(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.]{.underline}

[(d) What factors must PHMSA consider in making a determination that a
risk condition is present? In making a determination under paragraph (c)
of this section, the Associate Administrator, OPS shall consider, if
relevant:]{.underline}

[(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;]{.underline}

[(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;]{.underline}

[(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;]{.underline}

[(4) For hazardous liquid pipelines, the proximity of the pipeline to an
unusually sensitive area;]{.underline}

[(5) The population density and growth patterns of the area in which the
pipeline facility is located;]{.underline}

[(6) Any relevant recommendation of the National Transportation Safety
Board issued in connection with any investigation conducted by the
Board;]{.underline}

[(7) The likelihood that the condition will impair the serviceability of
the pipeline;]{.underline}

[(8) The likelihood that the condition will worsen over time;
and]{.underline}

[(9) The likelihood that the condition is present or could develop on
other areas of the pipeline.]{.underline}

[(e) What information will be included in a safety order? A safety order
shall contain the following:]{.underline}

[(1) A finding that the pipeline facility has a condition that poses a
pipeline integrity risk to public safety, property, or the
environment;]{.underline}

[(2) The relevant facts which form the basis of that
finding;]{.underline}

[(3) The legal basis for the order;]{.underline}

[(4) The nature and description of any particular corrective actions to
be required of the operator; and]{.underline}

[(5) The date(s) by which the required corrective actions must be taken
or completed and, where appropriate, the duration of the
order.]{.underline}

[(f) Can PHMSA take other enforcement actions on the affected
facilities? Nothing in this section precludes PHMSA from issuing a
Notice of Probable Violation under §190.207 or taking other enforcement
action if noncompliance is identified at the facilities that are the
subject of a safety order proceeding.]{.underline}

[\[Amdt. 190-\[13\], 73 FR 16562, Mar. 28, 2008]{.underline}\]

**Subpart C--Procedures for Adoption of Rules**

**§190.301 Scope.**

This subpart prescribes general rulemaking procedures for the issue,
amendment, and repeal of Pipeline Safety Program regulations of the
[Research and Special Programs Administration]{.mark} [Pipeline and
Hazardous Materials Safety Administration]{.underline} of the Department
of Transportation.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996 [as amended by Amdt. 190-12,
70 FR 11135, Mar. 8, 2005]{.underline}\]

**§190.303 Delegations.**

For the purposes of this subpart, *Administrator* means the
Administrator, [Research and Special Programs Administration]{.mark}
[Pipeline and Hazardous Materials Safety Administration]{.underline}, or
his or her delegate.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996 [as amended by Amdt. 190-12,
70 FR 11135, Mar. 8, 2005]{.underline}\]

**§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 [Research and
Special Programs Administration]{.mark} [Pipeline and Hazardous
Materials Safety Administration]{.underline} at [400 7^th^ Street,
SW]{.mark}[1200 New Jersey Avenue, SE.]{.underline}, Washington, DC
20590-0001.

\(b\) [Any person may examine and docketed material, once a docket is
established, at the offices of the Research and Special Programs
Administration at any time during regular business hours after the
docket is established, except material which the Administrator
determines should be withheld from public disclosure under applicable
provisions of any statute administered by the Administrator and section
552(b) of Title 5, United States Code, and may obtain a copy of it upon
payment of a fee.]{.mark} [[Any person may examine public docket
material, once a docket is established, at the offices of the Dockets
Management System, U.S. Department of Transportation, 400 7th Street,
SW., Room PL-401, Washington, DC 20590, and may obtain a copy of it upon
payment of a fee, at any time between the hours of 9 a.m. and 5 p.m.,
Monday through Friday, excluding Federal holidays, with the exception of
material which the Administrator, PHMSA determines should be withheld
from public disclosure under applicable provisions of any statute
administered by the Administrator and section 552(b) of title 5, United
States Code. Public comments may also be submitted and reviewed by
accessing the Dockets Management System\'s Web site at
*http://dms.dot.gov*. Inquiries and comment submissions must identify
the Docket]{.mark}Once a public docket is established, docketed material
may be accessed at
[*http://www.regulations.gov*](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov).
Public comments also may be submitted at
[*http://www.regulations.gov*](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov).
Comment submissions must identify the docket number. You may also
examine public docket material at the offices of the Docket Operations
Facility (M-30), U.S. Department of Transportation, West Building, First
Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
You may obtain a copy during normal business hours, excluding Federal
holidays, for a fee, with the exception of material which the
Administrator of PHMSA determines should be withheld from public
disclosure under 5 U.S.C. 552(b) or any other applicable statutory
provision.]{.underline}

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996 [as amended by Amdt. 190-12,
70 FR 11135, Mar. 8, 2005; Amdt. 190-\[13\], 73 FR 16562, Mar. 28,
2008]{.underline}\]\]

**§190.307 Records.**

Records of the [Research and Special Programs Administration]{.mark}
[Pipeline and Hazardous Materials Safety Administration]{.underline}
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).

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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 §190.331, and petitions for reconsideration
submitted under §190.335 must be submitted to: Administrator, [Research
and Special Programs Administration]{.mark} [Pipeline and Hazardous
Materials Safety Administration]{.underline}, U.S. Department of
Transportation, [400 7^th^ Street, SW]{.mark}[1200 New Jersey Avenue,
SE.]{.underline}, Washington DC 20590-0001.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996 [as amended by Amdt. 190-12,
70 FR 11135, Mar. 8, 2005; Amdt. 190-\[13\], 73 FR 16562, Mar. 28,
2008]{.underline}\]

**§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.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§190.315 Contents of notices of proposed rulemaking.**

\(a\) Each notice of proposed rulemaking is published in the **Federal
Register**, unless all persons subject to it are named and are
personally served with a copy of it.

\(b\) Each notice, whether published in the **Federal Register** or
personally served, includes:

\(1\) A statement of the time, place, and nature of the proposed
rulemaking proceeding;

\(2\) A reference to the authority under which it is issued;

\(3\) A description of the subjects and issues involved or the substance
and terms of the proposed regulation;

\(4\) A statement of the time within which written comments must be
submitted; and

\(5\) A statement of how and to what extent interested persons may
participate in the proceeding.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§190.319 Petitions for extension of time to comment.**

A petition for extension of the time to submit comments must be received
not later than 10 days before expiration of the time stated in the
notice, It is requested, but not required, that three copies be
submitted. The filing of the petition does not automatically extend the
time for petitioner's comments. A petition is granted only if the
petitioner shows good cause for the extension, and if the extension is
consistent with the public interest. If an extension is granted, it is
granted to all persons, and it is published in the **Federal Register**.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§190.321 Contents of written comments.**

All written comments must be in English. It is requested, but not
required, that five copies be submitted. Any interested person should
submit as part of written comments all material considered relevant to
any statement of fact. Incorporation of material by reference should be
avoided; however, where necessary, such incorporated material shall be
identified by document title and page.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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 part. Unless otherwise specified, hearings
held under this part are informal, nonadversary fact-finding
proceedings, at which there are no formal pleadings or adverse parties.
Any regulation issued in a case in which an informal hearing is held is
not necessarily based exclusively on the record of the hearing.

\(c\) The Administrator designates a representative to conduct any
hearing held under this subpart. The Chief Counsel designates a member
of his or her staff to serve as legal officer at the hearing.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§190.329 Adoption of final rules.**

Final rules are prepared by representatives of the Office of Pipeline
Safety and the Office of the Chief Counsel. The regulation is then
submitted to the Administrator for consideration. If the Administrator
adopts the regulation, it is published in the **Federal Register**,
unless all persons subject to it are named and are personally served
with a copy of it.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§190.333 Processing of petition.**

\(a\) *General*. Unless the Associate Administrator or the Chief Counsel
otherwise specifies, no public hearing, argument, or other proceeding is
held directly on a petition before its disposition under this section.

\(b\) *Grants*. If the Associate Administrator or the Chief Counsel
determines that the petition contains adequate justification, he or she
initiates rulemaking action under this subpart.

\(c\) *Denials*. If the Associate Administrator or the Chief Counsel
determines that the petition does not justify rulemaking, the petition
is denied.

\(d\) *Notification*. The Associate Administrator or the Chief Counsel
will notify a petitioner, in writing, of the decision to grant or deny a
petition for rulemaking.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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. It is requested, but not
required, that three copies be submitted. The petition must be received
not later than 30 days after publication of the rule in the **Federal
Register**. Petitions filed after that time will be considered as
petitions filed under §190.331. The petition must contain a brief
statement of the complaint and an explanation as to why compliance with
the rule is not practicable, is unreasonable, or is not in the public
interest.

\(b\) If the petitioner requests the consideration of additional facts,
the petitioner must state the reason they were not presented to the
Associate Administrator or the Chief Counsel within the prescribed time.

\(c\) The Associate Administrator or the Chief Counsel does not consider
repetitious petitions.

\(d\) Unless the Associate Administrator or the Chief Counsel otherwise
provides, the filing of a petition under this section does not stay the
effectiveness of the rule.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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 comments or information
and data as deemed appropriate, may be provided. Whenever the Associate
Administrator or the Chief Counsel determines that a petition should be
granted or denied, the Office of the Chief Counsel prepares a notice of
the grant or denial of a petition for reconsideration, for issuance to
the petitioner, and the Associate Administrator or the Chief Counsel
issues it to the petitioner. The Associate Administrator or the Chief
Counsel may consolidate petitions relating to the same rules.

\(b\) It is the policy of the Associate Administrator or the Chief
Counsel to issue notice of the action taken on a petition for
reconsideration within 90 days after the date on which the regulation in
question is published in the **Federal Register**, unless it is found
impracticable to take action within that time. In cases where is it so
found and the delay beyond that period is expected to be substantial,
notice of that fact and the date by which it is expected that action
will be taken is issued to the petitioner and published in the **Federal
Register**.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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**, and should set forth the
contested aspects of the decision as well as any new arguments or
information.

\(c\) It is requested, but not required, that three copies of the appeal
be submitted to the Administrator.

\(d\) Unless the Administrator otherwise provides, the filing of an
appeal under this section does not stay the effectiveness of any rule.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**§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 final rule in
the **Federal Register**, the Administrator will issue a confirmation
document, generally within 15 days after the close of the comment
period, advising the public that the direct final rule will either
become effective on the date stated in the direct final rule or at least
30 days after the publication date of the confirmation document,
whichever is later.

\(c\) For purposes of this section, an adverse comment is one which
explains why the rule would be inappropriate, including a challenge to
the rule's underlying premise or approach, or would be ineffective or
unacceptable without a change. Comments that are frivolous or
insubstantial will not be considered adverse under this procedure. A
comment recommending a rule change in addition to the rule will not be
considered an adverse comment, unless the commenter states why the rule
would be ineffective without the additional change.

\(d\) Only parties who filed comments to a direct final rule issued
under this section may petition under §190.335 for reconsideration of
that direct final rule.

\(e\) If an adverse comment or notice of intent to file an adverse
comment is received, a timely document will be published in the
**Federal Register** advising the public and withdrawing the direct
final rule in whole or in part. The Administrator may then incorporate
the adverse comment into a subsequent direct final rule or may publish a
notice of proposed rulemaking. A notice of proposed rulemaking will
provide an opportunity for public comment, generally a minimum of 60
days, and will be processed in accordance with §§190.311 through
190.329.

\[Amdt. 190-8, 61 FR 50907, Sept. 27, 1996\]

**[§190.341 Special permits.]{.underline}**

[(a) What is a special permit? A special permit is an order by which
PHMSA waives compliance with one or more of the Federal pipeline safety
regulations under the standards set forth in 49 U.S.C. 60118(c) and
subject to conditions set forth in the order. A special permit is issued
to a pipeline operator (or prospective operator) for specified
facilities that are or, absent waiver, would be subject to the
regulation.]{.underline}

[(b) How do I apply for a special permit? Applications for special
permits must be submitted at least 120 days before the requested
effective date using any of the following methods:]{.underline}

[(1) Direct fax to PHMSA at: 202-366-4566; or]{.underline}

[(2) 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.]{.underline}

[(c) What information must be contained in the application? Applications
must contain the following information:]{.underline}

[(1) The name, mailing address, and telephone number of the applicant
and whether the applicant is an operator;]{.underline}

[(2) A detailed description of the pipeline facilities for which the
special permit is sought, including:]{.underline}

[(i) The beginning and ending points of the pipeline mileage to be
covered and the Counties and States in which it is located;]{.underline}

[(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;]{.underline}

[(iii) Relevant pipeline design and construction information including
the year of installation, the material, grade, diameter, wall thickness,
and coating type; and]{.underline}

[(iv) Relevant operating information including operating pressure, leak
history, and most recent testing or assessment results;]{.underline}

[(3) A list of the specific regulation(s) from which the applicant seeks
relief;]{.underline}

[(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;]{.underline}

[(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;]{.underline}

[(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;]{.underline}

[(7) A certification that operation of the applicant\'s pipeline under
the requested special permit would not be inconsistent with pipeline
safety; and]{.underline}

[(8) If the application is for a renewal of a previously granted waiver
or special permit, a copy of the original grant of the waiver or
permit.]{.underline}

[(d) How does PHMSA handle special permit applications? (1) Public
notice. Upon receipt of an application for a special permit, PHMSA will
provide notice to the public of its intent to consider the application
and invite comment. In addition, PHMSA may consult with other Federal
agencies before granting or denying an application on matters that PHMSA
believes may have significance for proceedings under their areas of
responsibility.]{.underline}

[(2) Grants and denials. If the Associate Administrator determines that
the application complies with the requirements of this section and that
the waiver of the relevant regulation or standard is not inconsistent
with pipeline safety, the Associate Administrator may grant the
application, in whole or in part, on a temporary or permanent basis.
Conditions may be imposed on the grant if the Associate Administrator
concludes they are necessary to assure safety, environmental protection,
or are otherwise in the public interest. If the Associate Administrator
determines that the application does not comply with the requirements of
this section or that a waiver is not justified, the application will be
denied. Whenever the Associate Administrator grants or denies an
application, notice of the decision will be provided to the applicant.
PHMSA will post all special permits on its Web site at
[*http://www.PHMSA.dot.gov/*](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.phmsa.dot.gov/).]{.underline}

[(e) Can a special permit be requested on an emergency basis? Yes. PHMSA
may grant an application for an emergency special permit without notice
and comment or hearing if the Associate Administrator determines that
such action is in the public interest, is not inconsistent with pipeline
safety, and is necessary to address an actual or impending emergency
involving pipeline transportation. For purposes of this section, an
emergency event may be local, regional, or national in scope and
includes significant fuel supply disruptions and natural or manmade
disasters such as hurricanes, floods, earthquakes, terrorist acts,
biological outbreaks, releases of dangerous radiological, chemical, or
biological materials, war-related activities, or other similar events.
PHMSA will determine on a case-by-case basis what duration is necessary
to address the emergency. However, as required by statute, no emergency
special permit may be issued for a period of more than 60 days. Each
emergency special permit will automatically expire on the date specified
in the permit. Emergency special permits may be renewed upon application
to PHMSA only after notice and opportunity for a hearing on the
renewal.]{.underline}

[(f) How do I apply for an emergency special permit? Applications for
emergency special permits may be submitted to PHMSA using any of the
following methods:]{.underline}

[(1) Direct fax to the Crisis Management Center at:
202-366-3768;]{.underline}

[(2) Direct e-mail to PHMSA at:
*PHMSA.pipeline-emergencyspecpermit@dot.gov*; or]{.underline}

[(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.]{.underline}

[(g) What must be contained in an application for an emergency special
permit? In addition to the information required under paragraph (c) of
this section, applications for emergency special permits must
include:]{.underline}

[(1) An explanation of the actual or impending emergency and how the
applicant is affected;]{.underline}

[(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);]{.underline}

[(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);]{.underline}

[(4) A description of any proposed alternatives to compliance with the
regulation (e.g., additional inspections and tests, shortened
reassessment intervals); and]{.underline}

[(5) A description of any measures to be taken after the emergency
situation or permit expires\--whichever comes first\--to confirm
long-]{.underline}

[term operational reliability of the pipeline facility.]{.underline}

[**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.]{.underline}

[(h) In what circumstances will PHMSA revoke, suspend, or modify a
special permit?]{.underline}

[(1) PHMSA may revoke, suspend, or modify a special permit on a finding
that:]{.underline}

[(i) Intervening changes in Federal law mandate revocation, suspension,
or modification of the special permit;]{.underline}

[(ii) Based on a material change in conditions or circumstances,
continued adherence to the terms of the special permit would be
inconsistent with safety;]{.underline}

[(iii) The application contained inaccurate or incomplete information,
and the special permit would not have been granted had the application
been accurate and complete;]{.underline}

[(iv) The application contained deliberately inaccurate or incomplete
information; or]{.underline}

[(v) The holder has failed to comply with any term or condition of the
special permit.]{.underline}

[(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.]{.underline}

[(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.]{.underline}

[(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.]{.underline}

[(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.]{.underline}

[(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.]{.underline}

[(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.]{.underline}

[(i) Can a denial of a request for a special permit or a revocation of
an existing special permit be appealed? Reconsideration of the denial of
an application for a special permit or a revocation of an existing
special permit may be sought by petition to the Associate Administrator.
Petitions for reconsideration must be received by PHMSA within 20
calendar days of the notice of the grant or denial and must contain a
brief statement of the issue and an explanation of why the petitioner
believes that the decision being appealed is not in the public interest.
The Associate Administrator may grant or deny, in whole or in part, any
petition for reconsideration without further proceedings. The Associate
Administrator\'s decision is the final administrative
action.]{.underline}

[(j) Are documents related to an application for a special permit
available for public inspection? Documents related to an application,
including the application itself, are available for public inspection on
regulations.gov or the Docket Operations Facility to the extent such
documents do not include information exempt from public disclosure under
5 U.S.C. 552(b). Applicants may request confidential treatment under
part 7 of this title.]{.underline}

[\[Amdt. 190-\[13\], 73 FR 16562, Mar. 28, 2008\]]{.underline}