Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2889 

12. On page 79001, in the first 

column, in the table of contents, ‘‘88.2 

Organizational integrity of recipients’’ is 

corrected to ‘‘89.2 Organizational 

integrity of recipients.’’ 

13. On page 79001, in the first 

column, in the table of contents, ‘‘88.3 

Certifications’’ is corrected to ‘‘89.3 

Certifications.’’ 

14. On page 79001, in the first 

column, the heading ‘‘88.1 Definitions’’ 

is corrected to ‘‘89.1 Definitions.’’ 

15. On page 79001, in the second 

column, the heading ‘‘88.2 

Organizational integrity of recipients’’ is 

corrected to ‘‘89.2 Organizational 

integrity of recipients.’’ 

16. On page 79001, in the third 

column, in newly redesignated § 89.2, in 

paragraph (b), ‘‘required by § 88.3’’ is 

corrected to ‘‘required by § 89.3.’’ 

17. On page 79001, in the third 

column, the heading ‘‘88.3 

Certifications’’ is corrected to ‘‘89.3 

Certifications.’’ 

Dated: January 12, 2009. 

Ann C. Agnew, 

Executive Secretary to the Department. 

[FR Doc. E9–843 Filed 1–15–09; 8:45 am] 

BILLING CODE 4150–28–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 190, 191, 192, 193, 194, 

195, and 199 

RIN 2137–AE29 

[Docket No. PHMSA–2007–0033] 

Pipeline Safety: Administrative 

Procedures, Address Updates, and 

Technical Amendments 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), U.S. Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: This final rule adopts, with 

minor modifications, an interim final 

rule issued by PHMSA on March 28, 

2008, conforming PHMSA’s 

administrative procedures with the 

Pipeline Inspection, Protection, 

Enforcement, and Safety Act of 2006 by 

establishing the procedures PHMSA 

will follow for issuing safety orders and 

handling requests for special permits, 

including emergency special permits. 

The rule also notifies operators about 

electronic docket information 

availability; updates addresses for filing 

reports, telephone numbers, and routing 

symbols; and clarifies the time period 

for processing requests for written 

interpretations of the regulations. This 

final rule makes minor amendments and 

technical corrections to the regulatory 

text in response to written public 

comments received after issuance of the 

interim final rule. 

DATES: Effective Date: This final rule is 

effective February 17, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Larry White, PHMSA, Office of Chief 

Counsel, 202–366–4400, or by e-mail at 

lawrence.white@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 28, 2008, PHMSA issued an 

interim final rule (73 FR 16562) 

conforming PHMSA’s administrative 

procedures with the Pipeline 

Inspection, Protection, Enforcement, 

and Safety Act of 2006 (PIPES Act) (Pub. 

L. 109–468) by establishing the 

procedures PHMSA will follow for 

issuing safety orders and handling 

requests for special permits, including 

emergency special permits. The interim 

final rule also notified operators about 

electronic docket information 

availability; updated addresses, 

telephone numbers, and routing 

symbols; and clarified the time period 

for processing requests for written 

interpretations of the regulations. 

Because we considered these 

amendments to be procedural and 

ministerial in nature, PHMSA made 

them effective immediately, while 

inviting public comment on any and all 

terms. Having since received and 

considered written comments in 

response to our March 28, 2008, notice, 

PHMSA now is issuing this final rule, 

incorporating minor amendments and 

technical corrections to the regulatory 

text. 

Safety Orders. Pursuant to section 13 

of the PIPES Act, the interim final rule 

established the process by which 

PHMSA will initiate safety order 

proceedings to address identified 

pipeline integrity risks that may not rise 

to the level of a hazardous condition 

requiring immediate corrective action 

under 49 U.S.C. 60112, but should be 

addressed over time to prevent failures. 

The rule requires PHMSA to provide 

operators with notice and an 

opportunity for a hearing before issuing 

a safety order and expressly authorizes 

informal consultation in advance of an 

administrative hearing. In the absence of 

consent, a safety order must be based on 

a finding by the Associate Administrator 

for Pipeline Safety that a pipeline 

facility has a condition that poses a risk 

to public safety, property, or the 

environment. In making the required 

finding, the Associate Administrator 

considers all relevant information, 

including the nine considerations 

expressly enumerated in 49 U.S.C. 

60117(l)(2). PHMSA expects the 

majority of safety order proceedings to 

be resolved by consent agreement 

between the operator and PHMSA. The 

safety order process established in the 

interim final rule is largely unchanged 

in this final rule. 

Special Permits. To clarify the 

procedures governing special permits, 

and to establish new procedures for 

exercise of the agency’s emergency 

authority, the interim final rule added a 

new section, entitled ‘‘Special permits,’’ 

to our administrative procedures in 49 

CFR Part 190. The rule outlines the 

procedures under which pipeline 

operators (and prospective operators) 

may request special permits. It specifies 

the information that must be provided 

in each application and, in accordance 

with 49 U.S.C. 60118(c)(1)(B), provides 

for public notice and hearing on 

applications for (non-emergency) 

special permits. Section 10 of the PIPES 

Act provided PHMSA with the authority 

to issue an emergency waiver of a 

pipeline safety regulation without prior 

notice and hearing if necessary to 

address an emergency involving 

pipeline transportation, and the rule 

outlines the procedures for operators to 

request such emergency special permits. 

The special permit process established 

in the interim final rule is largely 

unchanged in this final rule. 

Other Amendments. The interim final 

rule also amended part 190 by adding a 

new paragraph notifying operators that 

all materials they submit in response to 

administrative enforcement actions may 

be placed on publicly accessible 

websites. The rule sets forth the 

procedure for seeking confidential 

treatment, along with other information 

concerning the agency’s new 

enforcement transparency website. The 

rule also reflects the recent relocation of 

DOT Headquarters and the transition 

from the Department’s electronic docket 

management system to the governmentwide electronic docket system (found at 

regulations.gov), enabling electronic 

service of enforcement documents. This 

final rule also amends 49 CFR Parts 

191–199 to correct the address for filing 

annual, accident, and safety-related 

condition reports for hazardous liquid 

pipelines (which was inadvertently 

omitted from the interim final rule) and 

corrects addresses, telephone numbers, 

and routing symbols in the regulations 

for filing various other forms and 

reports. 


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2890 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

Comments on the Interim Final Rule 

The interim final rule conformed 

agency practice and procedures to 

current public law and reflected the 

relocation of PHMSA headquarters; it 

did not impose any new substantive 

requirements on operators or the public. 

Accordingly, we determined that it was 

unnecessary to precede it with a notice 

of proposed rulemaking. Nevertheless, 

we encouraged interested persons to 

participate in this rulemaking 

proceeding by submitting comments 

containing relevant information, data, or 

views and indicated that we may later 

amend the rule based on comments 

received. 

PHMSA received comments on the 

interim final rule from ten 

organizations, including industry 

associations, individual pipeline 

operators, and a state pipeline safety 

representative. Most comments 

expressed strong support for the 

rulemaking action itself or for particular 

aspects of the interim final rule. For 

example, one commenter stated that it 

‘‘applauds and supports the Interim 

Rule as an important new tool to 

proactively address pipeline safety 

issues before they become imminent 

hazards.’’ Another commenter praised 

the informal consultation process set 

forth in the rule as a ‘‘forward thinking 

and cost-effective alternative for 

examining and addressing safety 

concerns.’’ 

These and other commenters also 

questioned certain aspects of the interim 

rule, in some cases suggesting 

modifications to the regulatory text. 

PHMSA reviewed these comments and 

used them in developing this final rule. 

The following is a discussion of the 

comments by issue. 

I. Address Updates and Form Filing 

Instructions 

One commenter representing a state 

pipeline safety program pointed out that 

the interim final rule left various 

discrepancies in address-updates and 

form filing instructions in parts 191– 

199. 

Response: PHMSA appreciates the 

commenter’s careful review and agrees 

that the address and form filing 

modifications identified by the 

commenter should have been made in 

the interim rule. These remaining 

address corrections and other 

modifications are included in this final 

rule. 

II. Safety Orders 

Need for Prior Notice and Comment on 

Proposed Actions Not Expressly Set 

Forth in the Statute 

Several commenters pointed out that 

the interim rule (§ 190.239(a)) identifies 

among the corrective actions that 

PHMSA may prescribe in a safety order 

certain activities (specifically, ‘‘risk 

assessment’’, ‘‘risk control’’, ‘‘data 

integration’’, and ‘‘information 

management’’) that are not expressly 

authorized in the statute (49 U.S.C. 

60117(l)(1)). These commenters contend 

that full notice and comment 

proceedings would be needed to include 

these terms in the regulatory text. The 

Association of Oil Pipelines and 

American Petroleum Institute express 

concern that including these actions 

‘‘opens operators to potentially 

significant and unbounded actions with 

no certainty of beneficial outcome, 

limitations on scope, or time frames.’’ 

They suggest ‘‘keeping to the language 

in the statute’’ by striking these terms 

from the paragraph. 

Response: PHMSA is revising the 

regulatory text in order to minimize 

unnecessary concern over the exercise 

of its new statutory authority. Although 

we included terms that are not in the 

underlying statutory language, we have 

no intention of imposing requirements 

beyond what the law allows. PHMSA 

understands the need to ensure a strong 

linkage between identified risk 

conditions and any mandated corrective 

actions, and we are committed to 

tailoring any mandatory actions to the 

nature and scope of the threat. 

Consistent with PHMSA’s regulatory 

approach, we consider the acquisition 

and use of information key elements in 

the design and implementation of safety 

controls. 

When appropriately framed and 

implemented, such activities can 

support more flexible and adaptive 

measures, as opposed to prescriptive 

remedial requirements. Accordingly, we 

anticipate that initial actions proposed 

in a Notice of Proposed Safety Order 

(NOPSO) will typically be diagnostic 

and performance-oriented, requiring the 

operator to evaluate conditions, conduct 

testing, and, on the basis of these 

activities, develop a work plan. Far from 

exceeding PHMSA’s jurisdiction, we 

believe this approach, and the inclusion 

of risk assessment and related measures 

in specific cases, generally will tend to 

protect operator interests and ensure a 

direct nexus between risk conditions 

and required safety controls. As we 

regularly do in other enforcement 

actions, PHMSA will be prepared to 

work closely with the operator in the 

resolution of technical issues and 

development and review of work plans. 

It remains our view that Congress 

intended PHMSA to have broad 

discretion to address identified pipeline 

risks. By its terms, the statute authorizes 

PHMSA, in addition to ordering 

physical inspection, testing, and repair, 

to require ‘‘other appropriate action to 

remedy the identified risk condition.’’ 

This language is broad enough to cover 

risk assessment, data integration and the 

other actions listed actions if justified in 

the specific circumstances. By the same 

token, we acknowledge that including 

the challenged terminology in the 

regulatory text is not necessary in order 

to preserve the full scope of PHMSA’s 

statutory authority and that we need not 

consider the propriety of any particular 

remedial actions in this rulemaking 

proceeding. Accordingly, we are striking 

the challenged regulatory text and will 

address the scope of PHMSA’s authority 

to prescribe remedial actions under 

§ 60117(l)(1)) should the issue arise in 

the context of a specific enforcement 

case. 

1. Including Initial Proposed Actions 

in Notice of Proposed Safety Order. 

One commenter contended that the 

NOPSO should not include any 

proposed actions at all. The commenter 

stated that it believed the informal 

consultation was the appropriate time 

for the corrective actions to be 

determined by both parties. 

Response: As we have discussed, the 

informal consultation process will 

provide an opportunity for reaching a 

mutually agreeable outcome, which may 

or may not include the specific 

corrective measures initially proposed 

by PHMSA. As a process matter, 

however, we must specify proposed 

measures in the NOPSO, in order to put 

the operator on due notice of the 

proceeding and potential adjudicatory 

outcome. The corrective measures 

proposed in the NOPSO limit the initial 

actions that PHMSA may order 

unilaterally in the event that the 

operator does not respond at all to a 

NOPSO, or if a consent agreement is not 

reached. As discussed above, we 

anticipate that actions proposed in the 

initial notice will typically be 

diagnostic- and performance-oriented, 

requiring the operator to evaluate 

conditions, conduct testing, and 

develop a work plan. Because the 

details of a work plan must be tied to 

the results of diagnostic evaluation and 

testing, we anticipate that most safety 

orders will require or contemplate 

consultation with PHMSA in the 

development of a specific work plan. 

2. Extent of PHMSA’s Discretion to 

Use Safety Orders. 


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Several commenters noted that under 

§ 60117(l), PHMSA has broad discretion 

concerning when to use a safety order 

as an enforcement tool. These 

commenters express concern that 

PHMSA might use a safety order for 

inappropriate purposes and suggest that 

PHMSA coordinate detailed criteria for 

the use of safety orders with industry 

groups or advisory committees. 

Response: PHMSA understands the 

importance of working cooperatively 

with operators in carrying out our 

shared responsibility for pipeline safety. 

The safety order process was carefully 

designed to provide for maximum 

cooperation between PHMSA and the 

affected operator. A safety order, 

however, is only one of several 

enforcement tools PHMSA may use to 

address a safety problem. Selections 

among available enforcement tools in 

particular cases are discretionary 

decisions for which PHMSA is 

responsible and are not coordinated 

with industry groups or advisory 

committees. PHMSA has previously 

outlined the basic circumstances in 

which it will consider use of a safety 

order. As we explained in the March 28, 

2008, notice, PHMSA will consider 

initiating safety order proceedings to 

address identified long-term risks before 

they become acute and result in a 

hazardous condition or imminent 

failure. PHMSA will consider use of a 

safety order when it is appropriate to 

this purpose and will continue to use its 

other enforcement tools (i.e., notices of 

probable violation, civil penalty 

assessments, compliance orders, 

corrective action orders, etc.) when their 

use is deemed appropriate. PHMSA 

does not frequently encounter situations 

in which a safety order would be 

appropriate and is unlikely to initiate 

more than a very few safety order 

proceedings per year. 

It should also be emphasized that 

safety orders will be highly case-specific 

and dependent on detailed facts and 

circumstances in each case. Each safety 

order used in a given instance must be 

based on a finding that the pipeline 

facility involved has a condition that 

poses a pipeline integrity risk to public 

safety, property, or the environment and 

the basis for that finding must be 

explained in the order itself. Therefore, 

generic discussions about when a safety 

order is appropriate may not be very 

useful; nor is it feasible to list all types 

of scenarios in which we would or 

would not use one. Nevertheless, 

PHMSA is always open to hearing from 

operators and other stakeholders about 

their views on when a safety order 

should be used, and operators are 

encouraged to communicate their views 

to PHMSA at any time and by any 

means they find convenient. If an 

operator is aware of a long-term risk 

condition on its pipeline that would be 

suitable for a cooperative resolution 

with PHMSA, we encourage the 

operator to come forward and inform us 

about the situation so a determination 

can be made if a safety order proceeding 

would be appropriate. 

3. Transcription of Hearings. 

One commenter representing natural 

gas pipeline operators contended that, 

in the event a safety order proceeding 

was not resolved through a consent 

agreement and a hearing was held, a 

transcript should be made of all 

hearings, presumably at PHMSA’s 

expense. Another industry commenter 

disagreed, stating that hearings should 

not be transcribed. 

Response: An operator participating 

in any pipeline safety enforcement 

hearing may arrange for the hearing to 

be transcribed at its own expense. 

Requesting that PHMSA provide a 

transcript of every hearing at 

government expense would be a 

resource and budget issue for PHMSA 

and would have to be revisited at a later 

time. Accordingly, no change to this 

effect will be made in this final rule. 

4. Ensuring Unbiased Hearing 

Officers. 

One commenter acknowledged that 

the rule ensured that hearing officers 

would have ‘‘no significant prior 

involvement’’ in the case, but argued 

that the rule should be amended to 

prohibit hearing officers from having 

any prior involvement whatsoever. 

PHMSA is committed to ensuring that 

its informal enforcement hearings are 

fair for all concerned. Hearing officers 

must be unbiased and are expected to 

provide a full opportunity for the 

operator to present all information it 

contends is relevant to the issue(s). 

PHMSA’s hearing officers have 

expertise in due process requirements, 

evidentiary matters, and construing 

laws and regulations and have 

consistently executed their 

responsibilities in a fair and 

professional manner. We would not 

disqualify a hearing officer merely 

because he or she heard the case 

mentioned or otherwise gained some 

general awareness of the matter. Hearing 

officers are trained to identify and avoid 

conflicts of interest, including recusal 

from hearing a case if a conflict of 

interest is present or an issue of bias has 

arisen for any reason. Accordingly, no 

change was made in the rule on this 

issue. 

5. Availability of Informal 

Consultation/Consent Agreement 

Option in Other Types of PHMSA 

Enforcement Actions. 

One commenter suggested that the 

rule be amended to make the informal 

consultation/consent agreement process 

established by the rule for safety order 

proceedings available in other PHMSA 

enforcement actions such as a Notice of 

Probable Violation (NOPV), Proposed 

Compliance Order, or Proposed Civil 

Penalty. This commenter also suggested 

that with respect to an operator’s 

response options for a NOPV with a 

Proposed Compliance Order, an 

operator must choose between either 

objecting and providing an explanation 

or requesting a hearing. 

Response: PHMSA’s existing 

regulations expressly authorize consent 

agreement discussions in enforcement 

cases involving only a Proposed 

Compliance Order (see § 190.219(a)). 

The proposal to adopt a similar 

provision for enforcement cases 

involving a Proposed Civil Penalty (with 

or without a Proposed Compliance 

Order), however, is beyond the scope of 

this rulemaking proceeding but may be 

considered as part of future policy and/ 

or rule change(s). 

Although the options for responding 

to a NOPV were not the subject of the 

interim final rule, in the interests of 

clarity, we note that the following 

options are available: 

• An operator that chooses not to 

contest any of the violations may still 

submit written explanations or other 

information it contends may warrant 

mitigation of the penalty or may reduce 

the need to order compliance actions; 

• An operator that chooses to contest 

one or more of the violations but not 

request an oral hearing may still submit 

a written response to the allegation(s) 

and/or seek mitigation of any proposed 

penalty; 

• An operator may request an oral 

hearing to contest the allegation(s) and/ 

or proposed assessment of a civil 

penalty; or 

• An operator may submit a written 

response to the allegation(s) and also 

request an oral hearing. 

We appreciate the comment and have 

recently clarified this point in the 

‘‘Response Options’’ enclosure which is 

sent out with enforcement notices. If the 

opportunity arises, we may also make a 

minor amendment reflecting this 

clarification in a future rulemaking 

involving § 190.209. 

6. Miscellaneous Comments on Safety 

Orders. 

One commenter suggested that 

PHMSA should consider using safety 

orders to address mining subsidence 

concerns. 


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Response: PHMSA is aware that in 

certain parts of the country, mining 

subsidence is a serious issue and would 

not rule out use of a safety order to 

address it. However, this involves no 

change in the rule. 

Finally, we are making a minor 

change to § 190.239(b) to clarify that an 

operator’s response to a NOPSO should 

be addressed to the PHMSA official who 

issued the NOPSO (typically the 

Regional Director); that the Regional 

Director may sign a consent agreement 

for PHMSA; and that a consent order 

must be signed by the Associate 

Administrator. 

III. Special Permits 

1. Modification of Special Permits on 

an Emergency Basis. 

One commenter noted that 

modification or revocation of a special 

permit without prior notice and hearing 

should only be done in the event of a 

true safety problem or emergency. 

Response: PHMSA agrees and 

believes that this is clearly reflected in 

the rule. Accordingly, no change was 

necessary in the rule on this issue. 

2. Modification or Revocation of a 

Special Permit for Non-Compliance with 

a Term or Condition. 

One commenter expressed concern 

that the word ‘‘material’’ does not 

precede the words ‘‘term or condition’’ 

in § 190.341(h)(1)(v) and, accordingly, 

that the interim final rule could be read 

to permit revocation of a special permit 

based on a clerical error. 

Response: PHMSA understands that 

pipeline infrastructure projects involve 

major investment decisions based to 

some degree on reliance on special 

permits and that modification or 

revocation is a serious matter. PHMSA 

has no history of modifying or revoking 

special permits for clerical errors or 

other immaterial or frivolous reasons, 

and nothing in the rule suggested a 

change in policy. However, in order to 

prevent any conceivable 

misunderstanding, and for the sake of 

consistency with subparagraph (ii) of 

this section, we are adding the word 

‘‘material’’ in this final rule. Moreover, 

it is worth noting that PHMSA’s 

enforcement remedies for 

noncompliance with a special permit 

are not limited to modification or 

revocation of the permit under the final 

rule. A special permit is a form of 

agency order, the violation of which 

may subject the operator to civil 

penalties and other remedies pursuant 

to 49 CFR 190.221. Because a holder of 

a special permit is not operating under 

the rule that was waived, it is obligated 

to adhere to all of the terms and 

conditions of its special permit. 

This commenter also stated its view 

that modification or revocation of a 

special permit for non-compliance with 

a term or condition should be limited to 

the affected pipeline segment as 

opposed to the entire line. 

Response: PHMSA considers such 

issues on a case-by-case basis and makes 

a determination concerning the proper 

scope of any revocation or modification 

based on the nature and severity of the 

non-compliance and PHMSA’s 

assessment of the actions necessary to 

ensure safe operation. If an operator 

contends that PHMSA’s enforcement 

action should be confined to a smaller 

portion of its line, with the exception of 

emergencies, under § 190.341(h)(2), the 

operator will have the opportunity to 

show cause for narrower relief. 

Accordingly, no change was made in the 

rule on this issue. 

3. Handling of Confidential Materials. 

One commenter suggested that 

materials submitted to PHMSA, that the 

applicant designates as confidential, 

should be protected pending PHMSA’s 

decision whether the materials qualify 

for confidential treatment. 

Response: This reflects current 

practice, and nothing in the rule 

suggests that PHMSA would do 

otherwise. PHMSA intends to continue 

this practice to the extent consistent 

with DOT policy and applicable law. 

Accordingly, no change was made in the 

rule on this issue. 

4. Compliance Enforcement While 

Special Permit Application Is Pending. 

One commenter suggested that 

PHMSA should include a ‘‘safe harbor’’ 

or ‘‘permit shield’’ that would prohibit 

PHMSA from citing an operator for noncompliance with a regulation pending 

review and consideration of a related 

special permit application. 

Response: We understand that an 

operator who has come forward with a 

special permit application might be 

concerned about being cited for noncompliance while its application is 

pending. Likewise, we acknowledge that 

specific circumstances might warrant 

forbearance of enforcement action 

pending consideration of a special 

permit application, as where the 

operator has in good faith implemented 

alternative safety controls and when 

strict compliance with an otherwise 

applicable requirement would be 

unduly burdensome or unreasonable. 

However, operators must recognize that 

failure to comply with an applicable 

regulatory requirement is not itself a 

basis for seeking a special permit and 

necessarily exposes an operator to some 

risk of enforcement. PHMSA reviews 

these circumstances on a case-by-case 

basis and has the discretion to conduct 

enforcement or refrain from doing so. 

PHMSA will not enact a blanket 

prohibition on its exercise of 

enforcement authority based on the 

pendency of a special permit 

application. Accordingly, no change 

was made in the rule on this issue. 

5. Special Permits Without an End 

Date. 

One commenter sought clarification 

that renewal does not apply to special 

permits without an end date. 

Response: PHMSA agrees, and 

nothing in the rule would suggest 

otherwise. Accordingly, no change was 

necessary in the rule on this issue. 

6. Availability of Informal 

Consultation/Hearing Option in Special 

Permit Proceedings. 

One commenter suggested that the 

informal consultation and hearing 

process used for safety orders should 

also be used for special permit 

proceedings. 

Response: PHMSA recognizes the 

importance of working closely with 

special permit applicants and 

communicates extensively with 

applicants about information that may 

be needed by PHMSA to process the 

application and about the kinds of 

alternative measures that would be 

needed to ensure an adequate level of 

safety. Since special permits already 

involve extensive informal (technical) 

consultations between PHMSA and the 

applicant and because there is also an 

opportunity for (paper) hearing in the 

special permit process, it is unnecessary 

to make any changes to the rule on this 

issue. 

7. Miscellaneous Comments on 

Special Permits. 

One commenter representing local gas 

distribution companies (LDCs) voiced 

concern about the length of time it has 

historically taken to obtain special 

permits for gas utilities from the 

responsible State agencies and 

commissions. The commenter also 

suggested that PHMSA should work 

with the LDC trade associations and 

State regulators to develop guidance for 

issuing emergency special permits for 

predictable situations such as severe 

winter conditions. Another commenter 

pointed out that gas LDCs often develop 

long-term remedial plans with the State 

commissions. 

Response: States handle special 

permits for gas distribution systems, and 

State proceedings are not part of this 

rule. PHMSA has been working with the 

States to help them develop guidance 

for issuing emergency special permits 

and will continue to assist the States on 

these issues. Nothing in the rule affects 

the ability of LDCs to develop long-term 


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remedial plans with the State 

commissions. 

Finally, we are making a minor 

change to § 190.341(c) to clarify that the 

information needed by PHMSA to 

process a special permit application 

may include environmental information 

where necessary. 

Rulemaking Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule is not considered a 

significant regulatory action under 

section 3(f) of Executive Order 12866 

and, therefore, was not subject to review 

by the Office of Management and 

Budget (OMB). This final rule is not 

significant under DOT Regulatory 

Policies and Procedures (44 FR 11034; 

Feb. 26, 1979). Because this rule 

conforms agency practice and procedure 

to reflect current public law and does 

not impose any new substantive 

requirements on operators or the public, 

it has no significant economic impact on 

regulated entities, and preparation of a 

regulatory impact analysis was not 

warranted. 

B. Executive Order 13132 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This rule does 

not introduce any regulation that: (1) 

Has substantial direct effects on the 

States, the relationship between the 

national government and the States, or 

the distribution of power and 

responsibilities among the various 

levels of government; (2) imposes 

substantial direct compliance costs on 

State and local governments; or (3) 

preempts State law. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

Further, this rule does not have impacts 

on federalism sufficient to warrant the 

preparation of a federalism assessment. 

C. Executive Order 13175 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

With Indian Tribal Governments’’). 

Because this rule does not significantly 

or uniquely affect the communities of 

the Indian tribal governments, the 

funding and consultation requirements 

of Executive Order 13175 do not apply. 

D. Executive Order 13211 

This final rule is not a significant 

energy action under Executive Order 

13211. It is not a significant regulatory 

action under Executive Order 12866 and 

is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. Further, 

this rule has not been designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. 

E. Regulatory Flexibility Act 

Because this final rule conforms 49 

CFR part 190 to the PIPES Act, updates 

the part 190 procedures to reflect 

current public law, and reflects the 

relocation of PHMSA headquarters, and 

will have no direct or indirect economic 

impacts for government units, 

businesses, or other organizations, I 

certify that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

F. Paperwork Reduction Act 

This final rule contains no new 

information collection requirements and 

imposes no additional paperwork 

burdens. Therefore, submitting an 

analysis of the burdens to OMB 

pursuant to the Paperwork Reduction 

Act was unnecessary. 

G. Unfunded Mandates Reform Act 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It does not result in costs of $100 

million or more, as adjusted for 

inflation, to either State, local or tribal 

governments, in the aggregate, or to the 

private sector, and is the least 

burdensome alternative that achieves 

the objectives of the rule. 

H. Environmental Assessment 

Because it imposes no new 

substantive requirements on operators 

or the public, no significant 

environmental impacts are associated 

with this final rule. 

List of Subjects 

49 CFR Part 190 

Administrative practice and 

procedure, Penalties. 

49 CFR Part 191 

Pipeline safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 192 

Pipeline safety, Fire prevention, 

Security measures. 

49 CFR Part 193 

Pipeline safety, Fire prevention, 

Security measures, and Reporting and 

recordkeeping requirements. 

49 CFR Part 194 

Oil pollution, Pipeline safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 195 

Ammonia, Carbon dioxide, 

Incorporation by reference, Petroleum, 

Pipeline safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 199 

Drug testing, Pipeline safety, 

Reporting and recordkeeping 

requirements, Safety, Transportation. 

■ For the reasons discussed in the 

preamble, the interim rule amending 49 

CFR parts 190, 191, 192, 193, 194, 195, 

and 199 which was published at 73 FR 

16562 on March 28, 2008, is adopted as 

a final rule with the following 

amendments: 

PART 190—PIPELINE SAFETY 

PROGRAMS AND RULEMAKING 

PROCEDURES 

■ 1. The authority citation for part 190 

continues to read as follows: 

Authority: 33 U.S.C. 1321; 49 U.S.C. 5101– 

5127, 60101 et seq.; 49 CFR 1.53. 

§ 190.239 [Amended] 

■ 2. Section 190.239 is amended as 

follows: 

■ a. Paragraph (a) is amended by 

removing the phrase ‘‘risk assessment, 

risk control, data integration, 

information management,’’ from the last 

sentence. 

■ b. Paragraph (b)(1) is amended by 

revising the last sentence to read as set 

forth below. 

■ c. Paragraph (b)(2) is amended by 

replacing the word PHMSA the third 

time it appears with the words 

‘‘Regional Director’’ and replacing the 

word ‘‘PHMSA’’ the fourth time it 

appears with the words ‘‘Associate 

Administrator.’’ 

§ 190.239 Safety orders. 

(b) * * * 

(1) * * * An operator receiving a 

notice will have 30 days to respond to 

the PHMSA official who issued the 

notice. 

§ 190.341 [Amended] 

■ 3. Section 190.341 is amended as 

follows: 

■ a. Remove the word ‘‘and’’ at the end 

of paragraph (c)(7) and add the word 

‘‘and’’ to the end of paragraph (c)(8). 

■ b. Add paragraph (c)(9) and revise 

paragraph (h)(1)(v) to read as follows: 

§ 190.341 Special permits. 

* * * * * 


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2894 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

(c) * * * 

(9) Any other information PHMSA 

may need to process the application 

including environmental analysis where 

necessary. 

* * * * * 

(h) * * * 

(1) * * * 

(v) The holder has failed to comply 

with any material term or condition of 

the special permit. 

* * * * * 

PART 191—TRANSPORTATION OF 

NATURAL AND OTHER GAS BY 

PIPELINE: ANNUAL REPORTS, AND 

SAFETY-RELATED CONDITION 

REPORTS 

■ 4. The authority citation for part 191 

continues to read as follows: 

Authority: 49 U.S.C. 5121, 60102, 60103, 

60104, 60108, 60117, 60118, and 60124; and 

49 CFR 1.53. 

§ 191.7 [Amended] 

■ 5. The first sentence of § 191.7 is 

amended by adding the words ‘‘the 

Information Resources Manager,’’ before 

‘‘PHP–10,’’ and by adding ‘‘–0001’’ to 

the zip code ‘‘20590’’. and the first 

sentence of 191.7 is also amended by 

inserting a comma after the word 

‘‘Avenue.’’ 

§ 191.27 [Amended] 

■ 6. In § 191.27, paragraph (b) is 

amended by: adding the words ‘‘Office 

of Pipeline Safety,’’ before the words 

‘‘Pipeline and Hazardous Materials 

Safety Administration’’, adding the 

words ‘‘Information Resources 

Manager,’’ before ‘‘PHP–10,’’; and 

adding ‘‘–0001’’ to the zip code 

‘‘20590’’. 

PART 192—TRANSPORTATION OF 

NATURAL AND OTHER GAS BY 

PIPELINE: MINIMUM FEDERAL 

SAFETY STANDARDS 

■ 7. The authority citation for part 192 

continues to read as follows: 

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60109, 60110, 60113, and 60118; and 

49 CFR 1.53. 

§ 192.7 [Amended] 

■ 8. In § 192.7, paragraph (b) is amended 

by adding the words ‘‘Office of Pipeline 

Safety,’’ before the words ‘‘Pipeline and 

Hazardous Materials Safety 

Administration,’’ and adding ‘‘20590– 

0001’’ after the words ‘‘Washington, 

DC.’’ 

§ 192.727 [Amended] 

■ 9. In § 192.727, paragraph (g)(1) is 

amended by: 

■ a. Adding the words ‘‘Office of 

Pipeline Safety,’’ before the words 

‘‘Pipeline and Hazardous Materials 

Safety Administration,’’; 

■ b. Adding ‘‘Information Resources 

Manager,’’ before ‘‘PHP–10,’’; 

■ c. Adding ‘‘–0001’’ to the zip code 

‘‘20590’’. 

§ 192.949 [Amended] 

■ 10. In § 192.949, paragraph (a) is 

amended by moving the words 

‘‘Information Resources Manager,’’ from 

their current position and placing them 

before ‘‘PHP–10,’’ and by adding ‘‘– 

0001’’ to the zip code ‘‘20590’’. 

§ 192.951 [Amended] 

■ 11. In § 192.951, paragraph (a) is 

amended by adding the words 

‘‘Information Resources Manager,’’ 

before ‘‘PHP–10,’’ and by adding ‘‘– 

0001’’ to the zip code ‘‘20590’’. 

PART 193—LIQUIFIED NATURAL GAS 

FACILITIES: FEDERAL SAFETY 

STANDARDS 

■ 12. The authority citation for part 193 

continues to read as follows: 

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60109, 60110, 60113, and 60118; and 

49 CFR 1.53. 

§ 193.2013 [Amended] 

■ 13. In § 193.2013, paragraph (b) is 

amended by adding ‘‘20590–0001’’ after 

the words ‘‘Washington, DC.’’ 

PART 194—RESPONSE PLANS FOR 

ONSHORE OIL PIPELINES 

■ 14. The authority citation for part 194 

continues to read as follows: 

Authority: 33 U.S.C. 1231, 1321(j)(1)(C), 

(j)(5) and (j)(6); sec. 2, E.O. 12777, 56 FR 

54757, 3 CFR, 1991 Comp., p. 351; 49 CFR 

1.53. 

§ 194.119 [Amended] 

■ 15. In § 194.119, paragraph (a) is 

amended by adding the words ‘‘Office of 

Pipeline Safety’’ before the words 

‘‘Pipeline and Hazardous Materials 

Safety Administration.’’ 

PART 195—TRANSPORTATION OF 

HAZARDOUS LIQUIDS BY PIPELINE 

■ 16. The authority citation for part 195 

continues to read as follows: 

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60109, 60118; and 49 CFR 1.53. 

§ 195.3 [Amended] 

■ 17. In § 195.3, paragraph (b) is 

amended by adding the words ‘‘Office of 

Pipeline Safety,’’ before the words 

‘‘Pipeline and Hazardous Materials 

Safety Administration,’’ by adding the 

words ‘‘U.S. Department of 

Transportation’’ following the words 

‘‘Pipeline and Hazardous Materials 

Safety Administration’’ and by adding 

the zip code ‘‘20590–0001’’ following 

the words ‘‘Washington, DC.’’ 

§ 195.52 [Amended] 

■ 18. In § 195.52, paragraph (b) is 

amended by removing the words ‘‘267– 

2675,’’ and adding in their place ‘‘(202) 

372–2428,’’ and by adding the zip code 

‘‘20590–0001’’ after ‘‘Washington, DC’’. 

§ 195.57 [Amended] 

■ 19. In § 195.57, paragraph (b) is 

amended by adding the words ‘‘Office of 

Pipeline Safety’’ before ‘‘Pipeline and 

Hazardous Materials Safety 

Administration,’’ and by adding 

‘‘Information Resources Manager’’ 

before ‘‘PHP–10.’’ 

§ 195.58 [Amended] 

■ 20. Section 195.58 is amended by 

removing the words ‘‘the Information 

Resources Manager,’’; removing the 

words ‘‘Room 7128, 400 Seventh Street, 

SW.,’’ and adding in their place 

‘‘Information Resources Manager, PHP– 

10, 1200 New Jersey Avenue, SE.,’’; and 

by adding ‘‘–0001’’ to the zip code 

‘‘20590’’. 

§ 195.59 [Amended] 

■ 21. In § 195.59, paragraph (a) is 

amended by adding the words ‘‘Office of 

Pipeline Safety,’’ before ‘‘Pipeline and 

Hazardous Materials Safety 

Administration,’’; adding the words 

‘‘Information Resources Manager,’’ 

before ‘‘PHP–10,’’; and adding ‘‘–0001’’ 

to the zip code ‘‘20590’’. 

§ 195.62 [Amended] 

■ 22. Section 195.62 is amended by 

removing the words ‘‘Information 

Resources Manager, Office of Pipeline 

Safety, Department of Transportation, 

Washington, DC 20590.’’ and adding the 

words ‘‘Office of Pipeline Safety, 

Pipeline and Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, Information Resources 

Manager, PHP–10, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001.’’ in their place. 

PART 199—DRUG AND ALCOHOL 

TESTING 

■ 23. The authority citation for part 199 

continues to read as follows: 

Authority: 49 U.S.C. 5103, 60102, 60104, 

60108, 60117, and 60118; 49 CFR 1.53. 

§ 199.7 [Amended] 

■ 24. In § 199.7, paragraph (a) is 

amended by: adding ‘‘U.S.’’ before 


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‘‘Department of Transportation,’’; 

adding ‘‘1200 New Jersey Avenue, SE’’ 

before ‘‘Washington, DC’’; and adding 

‘‘–0001’’ to the zip code ‘‘20590’’. 

§ 199.229 [Amended] 

■ 25. Section 199.229(c) is amended by 

adding ‘‘–0001’’ to the zip code. 

Authority: 49 U.S.C. 60101 et seq. 

Issued in Washington, DC on January 9, 

2009. 

Carl T. Johnson, 

Administrator. 

[FR Doc. E9–628 Filed 1–15–09; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety Administration 

49 CFR Parts 356, 365, and 374 

[Docket No. FMCSA–2008–0235] 

RIN 2126–AB16 

Elimination of Route Designation 

Requirement for Motor Carriers 

Transporting Passengers Over Regular 

Routes 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Final rule. 

SUMMARY: FMCSA discontinues the 

administrative requirement that 

applicants seeking for-hire authority to 

transport passengers over regular routes 

submit a detailed description and a map 

of the route(s) over which they propose 

to operate. The Agency will register 

such carriers as regular-route carriers 

without requiring the designation of 

specific regular routes and fixed endpoints. Once motor carriers have 

obtained regular-route, for-hire 

operating authority from FMCSA, they 

will no longer need to seek additional 

FMCSA approval in order to change or 

add routes. Each registered regular-route 

motor carrier of passengers will 

continue to be subject to the full safety 

oversight and enforcement programs of 

FMCSA and its State and local partners. 

DATES: This rule is effective March 17, 

2009. The compliance date for this rule 

is July 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Miller, Regulatory Development 

Division, (202) 366–5370 or by e-mail at: 

FMCSAregs@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Description of the Rulemaking 

FMCSA is discontinuing the 

administrative requirement that motor 

carriers must describe specific routes 

and provide maps of these routes when 

seeking authority to provide regularroute, for-hire transportation of 

passengers in interstate commerce. 

Except for carriers who are public 

recipients of governmental assistance, 

regular-route passenger carriers will be 

issued motor carrier certificates of 

registration that are not route specific. 

Designation of regular routes in motor 

carrier operating authority is not 

currently required by statute and 

administratively discontinuing this 

requirement will streamline the 

registration process by eliminating the 

need for motor carriers to file new 

applications when seeking to change or 

expand their routes. It will also benefit 

new entrants by simplifying the OP–1(P) 

application for operating authority. 

Designation of regular routes is an 

administrative requirement associated 

with the economic regulation of the 

passenger carrier industry. With the 

elimination of certain economic 

regulations beginning in 1980, the 

Agency believes continuing the practice 

of approving applications for changing 

and adding routes is unnecessary and 

offers no additional safety benefits to 

the public or the commercial passenger 

carrier community. 

However, the Agency will continue to 

require public recipients of 

governmental assistance to designate 

specific routes when applying for 

regular-route authority because 49 

U.S.C. 13902(b)(2)(B) permits persons to 

challenge specific regular-route 

transportation service provided by 

public entities on the ground that 

authorizing such service is not 

consistent with the public interest. 

Eliminating the route designation 

requirement in these circumstances 

would prevent the Agency from 

evaluating proposed transportation 

services under the public interest 

standard, in violation of its statutory 

mandate. 

This final rule amends several 

FMCSA regulations that reference 

authorized routes or points of service in 

order to make them consistent with the 

Agency’s discontinuation of the route 

designation requirement. The OP–1(P) 

application form will also be changed to 

eliminate the current route-designation 

and mapping requirements. Because 

changes to the OP–1(P) form must be 

approved by the Office of Management 

and Budget (OMB), and FMCSA plans to 

seek approval of additional 

modifications to the form in response to 

recent legislative changes unrelated to 

route designation requirements, the 

OMB approval process is expected to 

take several months. As a result, 

FMCSA will not implement the new 

procedures until 180 days after 

publication of this final rule. 

II. Legal Basis for the Rulemaking 

The Motor Carrier Act of 1935 (MCA) 

(Pub. L. 74–255, 49 Stat. 543, Aug. 9, 

1935) authorized the Interstate 

Commerce Commission (ICC) to regulate 

motor carriers by, among other things, 

issuing certificates of operating 

authority to motor carriers of property 

and passengers operating in interstate 

commerce. Section 207(a) of the MCA 

stated that ‘‘no certificate shall be issued 

to any common carrier of passengers for 

operations over other than a regular 

route or regular routes, and between 

fixed termini [end-points], except as 

such carriers may be authorized to 

engage in special or charter operations.’’ 

Section 208(a) of the MCA required that 

certificates issued to regular-route 

passenger carriers specify the routes, 

end-points, and intermediate points to 

be served under the certificate. Section 

208(b) permitted occasional deviations 

from authorized routes, if permitted by 

ICC regulations. 

These MCA provisions were 

subsequently recodified without 

substantive change as 49 U.S.C. 

10922(f)(1)–(3). However, they were 

repealed by the ICC Termination Act of 

1995 (ICCTA) (Pub. L. 104–88, 109 Stat. 

888, Dec. 29, 1995). The statutory 

registration requirements specific to 

passenger carriers are now codified at 

49 U.S.C. 13902(b). Section 103 of the 

ICCTA retained some of the former 

registration requirements of section 

10922 applicable to regular-route 

passenger carriers but eliminated many 

others, including 49 U.S.C. 10922(f)(1)– 

(3). 

The ICCTA also transferred the ICC’s 

authority to issue for-hire motor carrier 

operating authority to the Secretary of 

Transportation (Secretary). Section 101 

of the Motor Carrier Safety Improvement 

Act of 1999 (Pub. L. 106–159, 113 Stat. 

1750, Dec. 9, 1999) (MCSIA) created the 

FMCSA and directed the Administrator 

of the FMCSA to carry out the duties 

and powers vested in the Secretary by 

Title 49 United States Code, Chapters 

133 through 149. These powers include 

the authority of the Secretary, under 49 

U.S.C. 13301(a), to prescribe regulations 

governing registration requirements for 

motor carriers transporting passengers 

in interstate commerce for 

compensation. In addition to the 

statutory delegation, the Secretary has 

administratively delegated this 

authority to the FMCSA Administrator 

under 49 CFR 1.73(a). 


sroberts on PROD1PC70 with RULES