[Federal Register Volume 87, Number 91 (Wednesday, May 11, 2022)]
[Rules and Regulations]
[Pages 28779-28781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09740]


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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.

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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, <a href="/cdn-cgi/l/email-protection#7b311e091e160255331e15140c120f013b1f140f551c140d"><span class="__cf_email__" data-cfemail="bcf6d9ced9d1c592f4d9d2d3cbd5c8c6fcd8d3c892dbd3ca">[email protected]</span></a>.

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.
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    \1\ DOT OIG, No. ST2018076, ``DOT Operating Administrations Can 
Better Enable Referral of Potentially Criminal Activity to OIG'' 
(Aug. 22, 2018) (OIG Report).
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    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.
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    \2\ DOT, Order No. 8000.8A, ``Office of Inspector General 
Investigative Responsibilities,'' at 6(c) (Nov. 20, 2020).
    \3\ Specifically, 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-and-enforcement-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).
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    In parallel with updating pertinent procedures, PHMSA is updating 
provisions in its regulations governing criminal referrals through this 
rulemaking. The revised language in Sec. Sec.  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.
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    \4\ 58 FR 51735 (Oct. 4, 1993).
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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:
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    \5\ Under 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.

    If, under the APA . . . the agency is required to publish a 
general notice of

[[Page 28780]]

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 
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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.
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    \6\ 64 FR 43255 (Aug. 10, 1999).
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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.
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    \7\ 65 FR 67249 (Nov. 6, 2000).
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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\
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    \8\ 44 FR 56420 (Oct. 1, 1979).
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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

0
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.


0
2. Revise Sec.  107.335 to read as follows:


Sec.  107.335  Criminal referrals.

    (a) If a PHMSA employee becomes aware of any actual or possible 
activity subject to criminal penalties under

[[Page 28781]]

Sec.  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 
<a href="/cdn-cgi/l/email-protection#c5adaab1a9acaba085aaaca2eba1aab1eba2aab3"><span class="__cf_email__" data-cfemail="cea6a1baa2a7a0ab8ea1a7a9e0aaa1bae0a9a1b8">[email protected]</span></a>, 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

0
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.


0
4. Revise Sec.  190.293 to read as follows:


Sec.  190.293  Criminal referrals.

    (a) If a PHMSA employee becomes aware of any actual or possible 
activity subject to criminal penalties under Sec.  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 <a href="/cdn-cgi/l/email-protection#553d3a21393c3b30153a3c327b313a217b323a23"><span class="__cf_email__" data-cfemail="472f28332b2e292207282e206923283369202831">[email protected]</span></a>, 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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