Federal Register / Vol. 87, No. 91 / Wednesday, May 11, 2022 / Rules and Regulations 28779 

1 DOT OIG, No. ST2018076, ‘‘DOT Operating 

Administrations Can Better Enable Referral of 

Potentially Criminal Activity to OIG’’ (Aug. 22, 

2018) (OIG Report). 

2 DOT, Order No. 8000.8A, ‘‘Office of Inspector 

General Investigative Responsibilities,’’ at 6(c) (Nov. 

20, 2020). 

3Specifically, PHMSA Office of Hazardous 

Materials Safety, ‘‘Inspection, Investigation and 

Enforcement Manual Version 2.1,’’ available at 

https://www.phmsa.dot.gov/field-operations/ 

operational-guidance/inspection-investigation-andenforcement-manual-version-21 (update 

forthcoming) and PHMSA Office of Pipeline Safety, 

‘‘Pipeline Safety Enforcement Procedures,’’ 

available at https://www.phmsa.dot.gov/pipeline/ 

enforcement/pipeline-enforcement-procedures (last 

accessed Apr. 11, 2022). 

4 58 FR 51735 (Oct. 4, 1993). 

5Under 5 U.S.C. 603(a), the RFA also applies 

when an agency ‘‘publishes a notice of proposed 

rulemaking for an interpretative rule involving the 

internal revenue laws of the United States.’’ 

However, this rule does not involve the internal 

revenue laws of the United States. 

Skanska-Corman-McLean, Joint Venture, 

or its subcontractors. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, except for marine equipment, 

you may not enter the safety zone 

described in paragraph (a) of this 

section unless authorized by the COTP 

or the COTP’s designated representative. 

(2) To seek permission to enter, 

contact the COTP or the COTP’s 

representative by telephone number 

410–576–2693 or on Marine Band Radio 

VHF–FM channel 16 (156.8 MHz). 

Those in the safety zone must comply 

with all lawful orders or directions 

given to them by the COTP or the 

COTP’s designated representative. 

(d) Enforcement officials. The U.S. 

Coast Guard may be assisted in the 

patrol and enforcement of the safety 

zone by Federal, State, and local 

agencies. 

(e) Enforcement period. The section 

will be enforced from 7 a.m. on May 16, 

2022, through 8 p.m. on June 18, 2022. 

Dated: May 5, 2022. 

David E. O’Connell, 

Captain, U.S. Coast Guard, Captain of the 

Port Sector Maryland-National Capital 

Region. 

[FR Doc. 2022–10093 Filed 5–10–22; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 107 and 190 

[Docket No. PHMSA–2021–0119] 

RIN 2137–AF58 

Administrative Rulemaking—Criminal 

Referrals 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), Department of Transportation 

(DOT). 

ACTION: Final rule. 

SUMMARY: PHMSA is incorporating 

within its regulations language noting 

its employees’ ability to refer actual or 

possible criminal activity in connection 

with PHMSA’s jurisdictional statutes 

directly to the DOT Office of Inspector 

General (OIG). 

DATES: Effective May 11, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Henowitz, Attorney-Advisor, 

Office of Chief Counsel, Pipeline and 

Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, 1200 New Jersey Ave. 

SE, Washington, DC 20590, 

Jeremy.Henowitz@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

PHMSA regulations governing its 

hazardous materials safety and pipeline 

safety programs provide for referral of 

actual or possible criminal violations of 

the Hazardous Materials Transportation 

Act (49 U.S.C. 5101 et seq.), Pipeline 

Safety Act (49 U.S.C. 60101 et seq.), and 

orders or regulations issued thereunder, 

to law enforcement personnel. 

Specifically, 49 CFR 107.335 and 

190.293 contemplate that employees 

will report such activity through 

internal channels, with the PHMSA 

Office of Chief Counsel thereafter 

directing allegations to the Department 

of Justice (DOJ). PHMSA regulations are 

silent regarding whether employees may 

bring criminal referrals directly to OIG. 

OIG concluded in an August 22, 2018, 

audit report 1 that DOT and its 

Operating Administrations’ policies 

governing employee referrals of actual 

or possible criminal activity to OIG were 

dated, and that some Operating 

Administration policies may in fact 

hinder such referrals to OIG. OIG 

recommended updating pertinent DOT 

Orders regarding an employee’s ability 

to refer criminal activity to OIG, 

followed by each Operating 

Administration aligning their 

procedures with those updated DOT 

Orders. 

DOT issued Order 8000.8A 2 to 

implement OIG’s recommendation. DOT 

Order 8000.8A built on language within 

predecessor DOT Order 8000.8 and DOT 

Order 8000.5A regarding employees 

reporting criminal activity through 

internal channels, by stating explicitly 

that DOT ‘‘[e]mployees also have the 

option of making a direct referral to the 

Inspector General.’’ PHMSA has also 

updated pertinent agency procedures 3

to align with those revisions introduced 

in DOT Order 8000.8A. 

In parallel with updating pertinent 

procedures, PHMSA is updating 

provisions in its regulations governing 

criminal referrals through this 

rulemaking. The revised language in 

§§ 107.335 and 190.293 clarifies that 

PHMSA employees may directly refer 

actual or possible criminal activity to 

OIG through its hotline accessible by 

telephone, email, physical mail, or 

OIG’s website (https://www.oig.dot.gov/ 

fraud-hotline). PHMSA expects that 

these amendments to its regulations will 

increase transparency, accountability, 

reduce waste, fraud, and abuse, and are 

in line with PHMSA’s mission to assure 

safe transportation of energy and 

hazardous materials. 

II. Issuance of a Final Rule 

DOT is publishing this final rule 

without notice and comment and with 

an immediate effective date. The 

Administrative Procedure Act (APA) (5 

U.S.C. 551, et seq.) does not require 

notice and comment procedures for 

rulemakings establishing rules 

governing ‘‘matter[s] relating to agency 

management or personnel.’’ 5 U.S.C. 

553(a)(2). Here, the language being 

added to the regulations concerns 

internal PHMSA procedures regarding 

employees’ direct referral of actual or 

possible criminal activity to OIG. 

III. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule has been evaluated in 

accordance with existing policies and 

procedures and is considered not 

significant under Executive Order 12866 

(‘‘Regulatory Planning and Review’’) 4

and DOT Order 2100.6A (‘‘Rulemaking 

and Guidance Procedures’’); therefore, 

the final rule has not been reviewed by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

B. Regulatory Flexibility Analysis 

PHMSA has determined the 

Regulatory Flexibility Act of 1980 (RFA) 

(5 U.S.C. 601, et seq.) does not apply to 

this rulemaking. The RFA applies, in 

pertinent part, only when ‘‘an agency is 

required . . . to publish general notice 

of proposed rulemaking.’’ 5 U.S.C. 

604(a).5 The Small Business 

Administration’s ‘‘A Guide for 

Government Agencies: How to Comply 

with the Regulatory Flexibility Act’’ 

(2017), explains that: 

If, under the APA . . . the agency is 

required to publish a general notice of 


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28780 Federal Register / Vol. 87, No. 91 / Wednesday, May 11, 2022 / Rules and Regulations 

6 64 FR 43255 (Aug. 10, 1999). 

7 65 FR 67249 (Nov. 6, 2000). 8 44 FR 56420 (Oct. 1, 1979). 

proposed rulemaking (NPRM), the RFA must 

be considered [citing 5 U.S.C. 604(a)]. . . . If 

an NPRM is not required, the RFA does not 

apply. 

As stated above, the APA allows 

PHMSA to publish this final rule 

without notice and comment. Therefore, 

the analytical requirements of the RFA 

do not apply. 

C. Executive Order 13132 (Federalism) 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’).6 This regulation 

has no 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. It does not contain 

any provision that imposes substantial 

direct compliance costs on State and 

local governments, nor any new 

provision that preempts State law. 

Therefore, the consultation and funding 

requirements of Executive Order 13132 

do not apply. 

D. 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’’) 7 and 

DOT Order 5301.1 (‘‘Department of 

Transportation Programs, Polices, and 

Procedures Affecting American Indians, 

Alaska Natives, and Tribes’’). Because 

none of the measures in the rule have 

Tribal implications or impose 

substantial direct compliance costs on 

Indian Tribal governments, the funding 

and consultation requirements of 

Executive Order 13175 do not apply. 

E. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

before an agency submits a proposed 

collection of information to OMB for 

approval, it must publish a document in 

the Federal Register providing notice of 

and a 60-day comment period on, and 

otherwise consult with members of the 

public and affected agencies concerning, 

each proposed collection of information. 

5 CFR 1320.8(d). This final rule imposes 

no new information reporting or record 

keeping necessitating clearance by 

OMB. 

F. National Environmental Policy Act 

The National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321 et 

seq.) requires Federal agencies to 

prepare a detailed statement on major 

Federal actions significantly affecting 

the quality of the human environment. 

The Council on Environmental Quality 

implementing regulations (40 CFR parts 

1500–1508) require Federal agencies to 

conduct an environmental assessment 

considering (1) the need for the action, 

(2) alternatives to the action, (3) 

probable environmental impacts of the 

action and alternatives, and (4) the 

agencies and persons consulted during 

the consideration process. See also DOT 

Order 5610.1C (‘‘Procedures for 

Considering Environmental Impacts’’).8

1. Need for the Action 

This final rule responds to a 

recommendation made by OIG for 

Operating Administrations to clarify 

that employees can report actual or 

possible criminal activity directly to 

OIG. This likewise updates PHMSA’s 

regulations to be harmonious with DOT 

Order 8000.8A. 

2. Alternatives Considered 

In developing this rule, PHMSA 

considered two alternatives: 

Alternative (1) No Action: One 

alternative is to take no action. Under 

the current regulatory regime, PHMSA 

employees may report actual or possible 

criminal activity through internal 

channels, with the PHMSA Office of 

Chief Counsel thereafter directing 

allegations to the DOJ; it is not clearly 

stated whether they may make reports 

directly to OIG. OIG found that 

approach, and similar ambiguities 

within the regulatory regimes of other 

DOT Operating Administrations, were 

confusing and minimized employees’ 

use of the referral process. We reject the 

no action alternative. 

Alternative (2) Preferred Action: The 

preferred alternative is to amend the 

regulatory language. This alternative 

incorporates recommendations from 

OIG and action required in DOT Order 

8000.8A to clarify that PHMSA 

employees may make direct referrals to 

OIG of actual or potential criminal 

activity. 

3. Environmental Impacts 

This rule affects only internal PHMSA 

administrative procedures and 

personnel. Any environmental impact 

from clarifying the ability of PHMSA 

employees to refer conduct to OIG 

would be de minimis. It will have no 

direct effect but may result in more 

timely referral to OIG of wrongdoing 

that could be harmful to the 

environment, thereby ceasing that 

harmful behavior. On the other hand, 

the status quo risks delayed reporting, 

and therefore remediation, of criminal 

activities deleterious to the 

environment. 

4. Agencies Consulted 

PHMSA consulted with the Office of 

the Secretary of Transportation. 

5. Finding of No Significant Impact 

PHMSA has reviewed this action and 

determined it will not significantly 

impact the quality of the human 

environment. The amendments only 

affect administrative procedures by 

clarifying the ability of PHMSA 

personnel to make direct referrals to 

OIG. This amendment has no 

predictable adverse impact on human 

health or the environment. 

G. Unfunded Mandates Reform Act 

PHMSA analyzed the final rule under 

the factors in the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1501 et 

seq.). PHMSA considered whether the 

rule includes a Federal mandate that 

may result in the expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any one year. 

PHMSA has determined that this final 

rule will not result in such 

expenditures. Accordingly, no further 

assessment or analysis is required under 

the Unfunded Mandates Reform Act. 

List of Subjects 

49 CFR Part 107 

Administrative practices and 

procedure, Hazardous materials 

transportation, Penalties, Reporting and 

recordkeeping requirements. 

49 CFR Part 190 

Administrative practice and 

procedure, Penalties, Pipeline safety. 

Accordingly, PHMSA amends 49 CFR 

parts 107 and 190 as follows: 

Title 49—Transportation 

PART 107—HAZARDOUS MATERIALS 

PROGRAM PROCEDURES 

■ 1. The authority citation for part 107 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128, 44701; 

Pub. L. 101–410 Section 4; Pub. L. 104–121 

Sections 212–213; Pub. L. 104–134 Section 

31001; Pub. L. 114–74 Section 4 (28 U.S.C. 

2461 note); 49 CFR 1.81 and 1.97; 33 U.S.C. 

1321. 

■ 2. Revise § 107.335 to read as follows: 

§ 107.335 Criminal referrals. 

(a) If a PHMSA employee becomes 

aware of any actual or possible activity 

subject to criminal penalties under 


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Federal Register / Vol. 87, No. 91 / Wednesday, May 11, 2022 / Rules and Regulations 28781 

§ 107.333, the employee must report it 

to the Office of Chief Counsel, Pipeline 

and Hazardous Materials Safety 

Administration, and to the employee’s 

supervisor. The Chief Counsel may refer 

the report to the Associate 

Administrator to investigate. If 

appropriate, the Chief Counsel shall 

refer the report to the Office of Inspector 

General, or other law enforcement as 

appropriate (with notification to the 

Office of Inspector General as soon as 

possible). 

(b) A PHMSA employee also has the 

option of making a direct referral to the 

Office of Inspector General (OIG), either 

by directly contacting an OIG 

investigator, or via the OIG hotline at 

(800) 424–9071, at https://

www.oig.dot.gov/hotline, by email at 

hotline@oig.dot.gov, or by mail to the 

Office of Inspector General, 1200 New 

Jersey Ave. SE, West Bldg. 7th Floor, 

Washington, DC 20590. 

PART 190—PIPELINE SAFETY 

ENFORCEMENT AND REGULATORY 

PROCEDURES 

■ 3. The authority citation for part 190 

continues to read as follows: 

Authority: 33 U.S.C. 1321(b); 49 U.S.C. 

60101 et seq. 

■ 4. Revise § 190.293 to read as follows: 

§ 190.293 Criminal referrals. 

(a) If a PHMSA employee becomes 

aware of any actual or possible activity 

subject to criminal penalties under 

§ 190.291, the employee must report it 

to the Office of Chief Counsel, Pipeline 

and Hazardous Materials Safety 

Administration, and to the employee’s 

supervisor. The Chief Counsel may refer 

the report to the Associate 

Administrator to investigate. If 

appropriate, the Chief Counsel shall 

refer the report to the Office of Inspector 

General, or other law enforcement as 

appropriate (with notification to the 

Office of Inspector General as soon as 

possible). 

(b) A PHMSA employee also has the 

option of making a direct referral to the 

Office of Inspector General (OIG), either 

by directly contacting an OIG 

investigator, or via the OIG hotline at 

800–424–9071, at https://

www.oig.dot.gov/hotline, by email at 

hotline@oig.dot.gov, or by mail to the 

Office of Inspector General, 1200 New 

Jersey Ave. SE, West Bldg. 7th Floor, 

Washington, DC 20590. 

Issued in Washington, DC, on May 2, 2022, 

under authority delegated in 49 CFR 1.97. 

Tristan H. Brown, 

Deputy Administrator. 

[FR Doc. 2022–09740 Filed 5–10–22; 8:45 am] 

BILLING CODE 4910–60–P 


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