CFR 2011 Title49 Vol3 Part190 Subpartb

§ 190.11 49 CFR Ch.
I (10–1–11 Edition)
state agency receiving petitions initi- line Safety (PHP–30), PHMSA, U.S. De-
ated under this section shall provide partment of Transportation, 1200 New
the Administrator a written rec- Jersey Avenue, SE, Washington, DC
ommendation as to the disposition of 20590–0001. The requestor must include
any petition received by them. Where his or her return address and should
the Administrator does not reverse or also include a daytime telephone num-
modify a recommendation made by a ber. Written requests should be sub-
state agency within 10 business days of mitted at least 120 days before the time
its receipt, the recommended disposi- the requestor needs the response.
tion shall constitute the Administra- (2) A written interpretation regard-
tor’s decision on the petition. ing Federal pipeline safety law, 49
[Amdt. 190–5, 59 FR 17280, Apr. 12, 1994, as U.S.C 60101 et seq., may be obtained
amended by Amdt. 190–6, 61 FR 18513, Apr. 26, from the Office of the Chief Counsel,
1996; 70 FR 11137, Mar. 8, 2005; 73 FR 16566, PHMSA, U.S. Department of Transpor-
Mar. 28, 2008] tation, 1200 New Jersey Avenue, SE,
Washington, DC 20590–0001. The re-
§ 190.11 Availability of informal guid- questor must include his or her return
ance and interpretive assistance.
address and should also include a day-
(a) Availability of telephonic and Inter- time telephone number.
net assistance. (1) PHMSA has estab-
lished a website on the Internet and a [62 FR 24057, May 2, 1997; 62 FR 34415, June 26,
telephone line at the Office of Pipeline 1997, as amended at 70 FR 11137, Mar. 8, 2005;
73 FR 16566, Mar. 28, 2008; 73 FR 16567, Mar.
Safety headquarters where small oper-
28, 2008]
ators and others can obtain informa-
tion on and advice about compliance
with pipeline safety regulations, 49 Subpart B—Enforcement
CFR parts 190–199. The website and
telephone line are staffed by personnel § 190.201 Purpose and scope.
from PHMSA’s Office of Pipeline Safe- (a) This subpart describes the en-
ty from 9:00 a.m. through 5:00 p.m., forcement authority and sanctions ex-
Eastern time, Monday through Friday, ercised by the Associate Adminis-
except Federal holidays. When the trator, OPS for achieving and main-
lines are not staffed, individuals may taining pipeline safety. It also pre-
leave a recorded voicemail message, or scribes the procedures governing the
post a message at the OPS website. All exercise of that authority and the im-
messages will receive a response by the position of those sanctions.
following business day. The telephone (b) A person who is the subject of ac-
number for the OPS information line is tion pursuant to this subpart may be
(202) 366–4595 and the OPS website can represented by legal counsel at all
be accessed via the Internet at http:// stages of the proceeding.
ops.dot.gov.
(2) PHMSA’s Office of the Chief Coun- [45 FR 20413, Mar. 27, 1980, as amended by
sel (OCC) is available to answer ques- Amdt. 190–6, 61 FR 18513, Apr. 26, 1996]
tions concerning Federal pipeline safe-
ty law, 49 U.S.C. 60101 et seq. OCC may § 190.203 Inspections and investiga-
tions.
be contacted by telephone (202–366–4400)
from 9:00 a.m. to 4:00 p.m. Eastern (a) Officers, employees, or agents au-
time, Monday through Friday, except thorized by the Associate Adminis-
Federal holidays. Information and trator for Pipeline Safety, PHMSA,
guidance concerning Federal pipeline upon presenting appropriate creden-
safety law may also be obtained by tials, are authorized to enter upon, in-
contacting OCC via the Internet at spect, and examine, at reasonable
http://rspa-atty.dot.gov. times and in a reasonable manner, the
(b) Availability of Written Interpreta- records and properties of persons to the
tions. (1) A written regulatory interpre- extent such records and properties are
wreier-aviles on DSK3TPTVN1PROD with CFR
tation, response to a question, or an relevant to determining the compli-

opinion concerning a pipeline safety ance of such persons with the require-
issue may be obtained by submitting a ments of 49 U.S.C. 60101 et seq., or regu-
written request to the Office of Pipe- lations or orders issued thereunder.
374
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Pipeline and Hazardous Materials Safety Admin., DOT § 190.207
(b) Inspections are ordinarily con- enforcement proceedings prescribed in

ducted pursuant to one of the fol- §§ 190.207 through 190.235.
lowing:
[45 FR 20413, Mar. 27, 1980, as amended by
(1) Routine scheduling by the Re- Amdt. 190–3, 56 FR 31090, July 9, 1991; Amdt.
gional Director of the Region in which 190–6, 61 FR 18513, Apr. 26, 1996; Amdt. 190–7,
the facility is located; 61 FR 27792, June 3, 1996; Amdt. 190–7, 63 FR
(2) A complaint received from a mem- 7722, Feb. 17, 1998; 70 FR 11137, Mar. 8, 2005]
ber of the public;
(3) Information obtained from a pre- § 190.205 Warning letters.
vious inspection; Upon determining that a probable
(4) Report from a State Agency par- violation of 49 U.S.C. 60101 et seq. or
ticipating in the Federal Program any regulation or order issued there-
under 49 U.S.C. 60105; under has occurred, the Associate Ad-
(5) Pipeline accident or incident; or ministrator, OPS, may issue a Warning
(6) Whenever deemed appropriate by Letter notifying the owner or operator
the Administrator, PHMSA or his des- of the probable violation and advising
ignee. the owner or operator to correct it or
(c) If, after an inspection, the Asso- be subject to enforcement action under
ciate Administrator, OPS believes that §§ 190.207 through 190.235.
further information is needed to deter- [Amdt. 190–6, 61 FR 38403, July 24, 1996]
mine appropriate action, the Associate
Administrator, OPS may send the § 190.207 Notice of probable violation.
owner or operator a ‘‘Request for Spe-
cific Information’’ to be answered with- (a) Except as otherwise provided by
in 45 days after receipt of the letter. this subpart, a Regional Director be-
(d) To the extent necessary to carry gins an enforcement proceeding by
out the responsibilities under 49 U.S.C. serving a notice of probable violation
60101 et seq., the Administrator, on a person charging that person with
PHMSA or the Associate Adminis- a probable violation of 49 U.S.C. 60101 et
trator, OPS may require testing of por- seq. or any regulation or order issued
tions of pipeline facilities that have thereunder.
been involved in, or affected by, an ac- (b) A notice of probable violation
cident. However, before exercising this issued under this section shall include:
authority, the Administrator, PHMSA (1) Statement of the provisions of the
or the Associate Administrator, OPS laws, regulations or orders which the
shall make every effort to negotiate a respondent is alleged to have violated
mutually acceptable plan with the and a statement of the evidence upon
owner of those facilities and, where ap- which the allegations are based;
propriate, the National Transportation (2) Notice of response options avail-
Safety Board for performing the test- able to the respondent under § 190.209;
ing. (3) If a civil penalty is proposed under
(e) If a representative of the DOT in- § 190.221, the amount of the proposed
vestigates an incident involving a pipe- civil penalty and the maximum civil
line facility, OPS may request that the penalty for which respondent is liable
operator make available to the rep- under law; and
resentative all records and information (4) If a compliance order is proposed
that pertain to the incident in any under § 190.217, a statement of the re-
way, including integrity management medial action being sought in the form
plans and test results, and that the op- of a proposed compliance order.
erator afford all reasonable assistance (c) The Associate Administrator,
in the investigation. OPS may amend a notice of probable
(f) When the information obtained violation at any time prior to issuance
from an inspection or from other ap- of a final order under § 190.213. If an
propriate sources indicates that fur- amendment includes any new material
ther OPS action is warranted, the OPS allegations of fact or proposes an in-
may issue a warning letter under creased civil penalty amount or new or
§ 190.205 or initiate one or more of the additional remedial action under
375
§ 190.209 49 CFR Ch. I (10–1–11 Edition)
§ 190.217, the respondent shall have the the second copy but must provide an
opportunity to respond under § 190.209. explanation for each redaction.
[45 FR 20413, Mar. 27, 1980, as amended by [45 FR 20413, Mar. 27, 1980, as amended by
Amdt. 190–6, 61 FR 18513, Apr. 26, 1996] Amdt. 190–1, 53 FR 1635, Jan. 21, 1988; Amdt.
190–6, 61 FR 18513, Apr. 26, 1996; Amdt. 190–7,
§ 190.209 Response options. 61 FR 27792, June 3, 1996; Amdt. 190–7, 63 FR
7722, Feb. 17, 1998; 73 FR 16567, Mar. 28, 2008]
Within 30 days of receipt of a notice
of probable violation, the respondent § 190.211 Hearing.
shall respond to the Regional Director (a) A request for a hearing provided
who issued the notice in the following for in this part must be accompanied
way: by a statement of the issues that the
(a) When the notice contains a pro- respondent intends to raise at the hear-
posed civil penalty— ing. The issues may relate to the alle-
(1) Pay the proposed civil penalty as gations in the notice, the proposed cor-
provided in § 190.227 and close the case rective action (including a proposed
with prejudice to the respondent; amendment, a proposed compliance
(2) Submit written explanations, in- order, or a proposed hazardous facility
formation or other materials in answer order), or the proposed civil penalty
to the allegations or in mitigation of amount. A respondent’s failure to
the proposed civil penalty; or specify an issue may result in waiver of
(3) Request a hearing under § 190.211. the respondent’s right to raise that
issue at the hearing. The respondent’s
(b) When the notice contains a pro-
request must also indicate whether or
posed compliance order—
not the respondent will be represented
(1) Agree to the proposed compliance by counsel at the hearing.
order; (b) A telephone hearing will be held if
(2) Request the execution of a con- the amount of the proposed civil pen-
sent order under § 190.219; alty or the cost of the proposed correc-
(3) Object to the proposed compliance tive action is less than $10,000, unless
order and submit written explanations, the respondent submits a written re-
information or other materials in an- quest for an in-person hearing. Hear-
swer to the allegations in the notice of ings are held in a location agreed upon
probable violation; or by the presiding official, OPS and the
(4) Request a hearing under § 190.211. respondent.
(c) Failure of the respondent to re- (c) An attorney from the Office of the
spond in accordance with paragraph (a) Chief Counsel, Pipeline and Hazardous
of this section or, when applicable, Materials Safety Administration,
paragraph (c) of this section, con- serves as the presiding official at the
stitutes a waiver of the right to con- hearing.
test the allegations in the notice of (d) The hearing is conducted infor-
probable violation and authorizes the mally without strict adherence to rules
of evidence. The respondent may sub-
Associate Administrator, OPS, without
mit any relevant information and ma-
further notice to the respondent, to
terial and call witnesses on the re-
find facts to be as alleged in the notice
spondent’s behalf. The respondent may
of probable violation and to issue a
also examine the evidence and wit-
final order under § 190.213. nesses presented by the government.
(d) All materials submitted by opera- No detailed record of a hearing is pre-
tors in response to enforcement actions pared.
may be placed on publicly accessible (e) Upon request by respondent, and
Web sites. A Respondent that seeks whenever practicable, the material in
confidential treatment under 5 U.S.C. the case file pertinent to the issues to
552(b) for any portion of its responsive be determined is provided to the re-
materials must provide a second copy spondent 30 days before the hearing.
of such materials along with the com- The respondent may respond to or
plete original document. A Respondent rebut this material at the hearing.
may redact the portions it believes (f) During the hearing, the respond-
qualify for confidential treatment in ent may offer any facts, statements,
376
explanations, documents, testimony or (4) The Regional Director’s evalua-

other items which are relevant to the tion of response material submitted by
issues under consideration. the respondent and recommendation
(g) At the close of the respondent’s for final action to be taken under this
presentation, the presiding official section; and
may present or allow the presentation (5) In cases involving a § 190.211 hear-
of any OPS rebuttal information. The ing, any material submitted during and
respondent may then respond to that after the hearing and the presiding offi-
information. cial’s recommendation for final action
(h) After the evidence in the case has to be taken under this section.
been presented, the presiding official (c) Based on a review of a case file de-
shall permit argument on the issues scribed in paragraph (b) of this section,
under consideration. the Associate Administrator, OPS shall
(i) The respondent may also request issue a final order that includes—
an opportunity to submit further writ- (1) A statement of findings and deter-
ten materal for inclusion in the case minations on all material issues, in-
file. The presiding official shall allow a cluding a determination as to whether
reasonable time for the submission of each alleged violation has been proved;
the material and shall specify the date (2) If a civil penalty is assessed, the
by which it must be submitted. If the amount of the penalty and the proce-
material is not submitted within the dures for payment of the penalty, pro-
time prescribed, the case shall proceed vided that the assessed civil penalty
to final action without the material. may not exceed the penalty proposed in
(j) After submission of all materials the notice of probable violation; and
during and after the hearing, the pre- (3) If a compliance order is issued, a
siding official shall prepare a written statement of the actions required to be
recommendation as to final action in taken by the respondent and the time
the case. This recommendation, along by which such actions must be accom-
with any material submitted during plished.
and after the hearing, shall be included (d) Except as provided by § 190.215, an
in the case file which is forwarded to order issued under this section regard-
the Associate Administrator, OPS for ing an enforcement proceeding is con-
final administrative action. sidered final administrative action on
[45 FR 20413, Mar. 17, 1980, as amended by that enforcement proceeding.
Amdt. 190–3, 56 FR 31090, July 9, 1991; Amdt. (e) It is the policy of the Associate
190–6, 61 FR 18514, Apr. 26, 1996; Amdt. 190–7, Administrator, OPS to issue a final
61 FR 27792, June 3, 1996; 70 FR 11137, Mar. 8,
order under this section expeditiously.
2005]
In cases where a substantial delay is
§ 190.213 Final order. expected, notice of that fact and the
date by which it is expected that ac-
(a) After a hearing under § 190.211 or, tion will be taken is provided to the re-
if no hearing has been held, after expi- spondent upon request and whenever
ration of the 30 day response period practicable.
prescribed in § 190.209, the case file of
an enforcement proceeding commenced [45 FR 20413, Mar. 27, 1980, as amended by
under § 190.207 is forwarded to the Asso- Amdt. 190–6, 61 FR 18514, Apr. 26, 1996; 70 FR
ciate Administrator, OPS for issuance 11137, Mar. 8, 2005]
of a final order.
(b) The case file of an enforcement § 190.215 Petitions for reconsideration.
proceeding commenced under § 190.207 (a) A respondent may petition the
includes: Associate Administrator, OPS for re-
(1) The inspection reports and any consideration of a final order issued
other evidence of alleged violations; under § 190.213. It is requested, but not
(2) A copy of the notice of probable required, that three copies be sub-
violation issued under § 190.207; mitted. The petition must be received
(3) Material submitted by the re- no later than 20 days after service of
spondent in accord with § 190.209 in re- the final order upon the respondent.
sponse to the notice of probable viola- Petitions received after that time will
tion; not be considered. The petition must
377
§ 190.217 49 CFR Ch. I (10–1–11 Edition)
contain a brief statement of the com- lations and to issue an order directing
plaint and an explanation as to why compliance.
the effectiveness of the final order
[Amdt. 190–6, 61 FR 18514, Apr. 26, 1996]
should be stayed.
(b) If the respondent requests the § 190.219 Consent order.
consideration of additional facts or ar-
(a) At any time before the issuance of
guments, the respondent must submit
a compliance order under § 190.213 the
the reasons they were not presented
Associate Administrator, OPS and the
prior to issuance of the final order.
respondent may agree to dispose of the
(c) The Associate Administrator, case by joint execution of a consent
OPS does not consider repetitious in- order. Upon such joint execution, the
formation, arguments, or petitions. consent order shall be considered a
(d) The filing of a petition under this final order under § 190.213.
section stays the payment of any civil (b) A consent order executed under
penalty assessed. However, unless the paragraph (a) of this section shall in-
Associate Administrator, OPS other- clude:
wise provides, the order, including any (1) An admission by the respondent of
required corrective action, is not all jurisdictional facts;
stayed.
(2) An express waiver of further pro-
(e) The Associate Administrator, cedural steps and of all right to seek
OPS may grant or deny, in whole or in judicial review or otherwise challenge
part, any petition for reconsideration or contest the validity of that order;
without further proceedings. In the (3) An acknowledgement that the no-
event the Associate Administrator, tice of probable violation may be used
OPS reconsiders a final order, a final to construe the terms of the consent
decision on reconsideration may be order; and
issued without further proceedings, or,
(4) A statement of the actions re-
in the alternative, additional informa-
quired of the respondent and the time
tion, data, and comment may be re-
by which such actions shall be accom-
quested by the Associate Adminis-
plished.
trator, OPS as deemed appropriate.
(f) It is the policy of the Associate [45 FR 20413, Mar. 27, 1980, as amended by
Administrator, OPS to issue notice of Amdt. 190–6, 61 FR 18514, Apr. 26, 1996]
the action taken on a petition for re-
consideration expeditiously. In cases CIVIL PENALTIES
where a substantial delay is expected, § 190.221 Civil penalties generally.
notice of that fact and the date by
which it is expected that action will be When the Associate Administrator,
taken is provided to the respondent OPS has reason to believe that a per-
upon request and whenever practicable. son has committed an act which is a
violation of any provision of the 49
[Amdt. 190–6, 61 FR 18514, Apr. 26, 1996, as U.S.C. 60101 et seq. or any regulation or
amended by Amdt 190–7, 61 FR 27792, June 3, order issued thereunder, proceedings
1996; 70 FR 11137, Mar. 8, 2005]
under §§ 190.207 through 190.213 may be
COMPLIANCE ORDERS conducted to determine the nature and
extent of the violations and to assess
§ 190.217 Compliance orders generally. and, if appropriate, compromise a civil
penalty.
When the Associate Administrator,
OPS has reason to believe that a per- [Amdt. 190–6, 61 FR 18515, Apr. 26, 1996]
son is engaging in conduct which in-
volves a violation of the 49 U.S.C. 60101 § 190.223 Maximum penalties.
et seq. or any regulation issued there- (a) Any person who is determined to
under, and if the nature of the viola- have violated a provision of 49 U.S.C.
tion, and the public interest warrant, 60101 et seq., or any regulation or order
the Associate Administrator, OPS may issued thereunder, is subject to a civil

conduct proceedings under §§ 190.207 penalty not to exceed $100,000 for each
through 190.213 of this part to deter- violation for each day the violation
mine the nature and extent of the vio- continues except that the maximum
378
civil penalty may not exceed $1,000,000 (1) The economic benefit gained from
for any related series of violations. violation, if readily ascertainable,
(b) Any person who knowingly vio- without any reduction because of sub-
lates a regulation or order under this sequent damages; and
subchapter applicable to offshore gas (2) Such other matters as justice may
gathering lines issued under the au- require.
thority of 49 U.S.C. 5101 et seq is liable [70 FR 11137, Mar. 8, 2005]
for a civil penalty of not more than
$25,000 for each violation, and if any § 190.227 Payment of penalty.
such violation is a continuing one, (a) Except for payments exceeding
each day of violation constitutes a sep- $10,000, payment of a civil penalty pro-
arate offense. posed or assessed under this subpart
(c) Any person who is determined to may be made by certified check or
have violated any standard or order money order (containing the CPF Num-
under 49 U.S.C. 60103 shall be subjected ber for the case), payable to ‘‘U.S. De-
to a civil penalty of not to exceed partment of Transportation,’’ to the
$50,000, which penalty shall be in addi- Federal Aviation Administration, Mike
tion to any other penalties to which Monroney Aeronautical Center, Finan-
such person may be subject under para- cial Operations Division (AMZ–341),
graph (a) of this section. P.O. Box 25770, Oklahoma City, OK
(d) Any person who is determined to 73125, or by wire transfer through the
have violated any standard or order Federal Reserve Communications Sys-
under 49 U.S.C. 60129 shall be subject to tem (Fedwire) to the account of the
a civil penalty not to exceed $1,000, U.S. Treasury. Payments exceeding
which shall be in addition to any other $10,000 must be made by wire transfer.
penalties to which such person may be (b) Payment of a civil penalty as-
subject under paragraph (a) of this sec- sessed in a final order issued under
tion. § 190.213 or affirmed in a decision on a
(e) No person shall be subject to a petition for reconsideration must be
civil penalty under this section for the made within 20 days after receipt of the
violation of any requirement of this final order or decision. Failure to do so
subchapter and an order issued under will result in the initiation of collec-
§ 190.217, § 190.219 or § 190.233 if both vio- tion action, including the accrual of in-
lations are based on the same act. terest and penalties, in accordance
with 31 U.S.C. 3717 and 49 CFR part 89.
[45 FR 20413, Mar. 27, 1980, as amended by
Amdt. 190–2, 54 FR 32344, Aug. 7, 1989; Amdt. [Amdt. 190–7, 61 FR 27792, June 3, 1996, as
190–6, 61 FR 18515, Apr. 26, 1996; 61 FR 38403, amended at 70 FR 11138, Mar. 8, 2005; 73 FR
July 24, 1996; 70 FR 11137, Mar. 8, 2005] 16567, Mar. 28, 2008]
§ 190.225 Assessment considerations. CRIMINAL PENALTIES

In determining the amount of a civil § 190.229 Criminal penalties generally.
penalty under this part,
(a) Any person who willfully and
(a) The Associate Administrator,
knowingly violates a provision of 49
OPS shall consider: U.S.C. 60101 et seq. or any regulation or
(1) The nature, circumstances and order issued thereunder shall upon con-
gravity of the violation, including ad- viction be subject for each offense to a
verse impact on the environment; fine of not more than $25,000 and im-
(2) The degree of the respondent’s prisonment for not more than five
culpability; years, or both.
(3) The respondent’s history of prior (b) Any person who willfully violates
offenses; a regulation or order under this sub-
(4) The respondent’s ability to pay; chapter issued under the authority of
(5) Any good faith by the respondent 49 U.S.C. 5101 et seq. as applied to off-
in attempting to achieve compliance; shore gas gathering lines shall upon
(6) The effect on the respondent’s conviction be subject for each offense
ability to continue in business; and to a fine of not more than $25,000, im-
(b) The Associate Administrator, prisonment for a term not to exceed 5
OPS may consider: years, or both.
379
§ 190.231 49 CFR Ch. I (10–1–11 Edition)
(c) Any person who willfully and § 190.229 if both violations are based on
knowingly injures or destroys, or at- the same act.
tempts to injure or destroy, any inter- [45 FR 20413, Mar. 27, 1980, as amended by
state transmission facility, any inter- Amdt. 190–2, 54 FR 32344, Aug. 7, 1989; Amdt.
state pipeline facility, or any intra- 190–4, 56 FR 63770, Dec. 5, 1991; Amdt. 190–6, 61
state pipeline facility used in inter- FR 18515, Apr. 26, 1996; 70 FR 11138, Mar. 8,
state or foreign commerce or in any ac- 2005]
tivity affecting interstate or foreign § 190.231 Referral for prosecution.
commerce (as those terms are defined
in 49 U.S.C. 60101 et seq.) shall, upon If an employee of the Pipeline and
Hazardous Materials Safety Adminis-
conviction, be subject for each offense
tration becomes aware of any actual or
to a fine of not more than $25,000, im-
possible activity subject to criminal
prisonment for a term not to exceed 15 penalties under § 190.229, the employee
years, or both. reports it to the Office of the Chief
(d) Any person who willfully and Counsel, Pipeline and Hazardous Mate-
knowingly defaces, damages, removes, rials Safety Administration, U.S. De-
destroys any pipeline sign, right-of- partment of Transportation, Wash-
way marker, or marine buoy required ington, DC 20590. The Chief Counsel re-
by 49 U.S.C. 60101 et seq. or 49 U.S.C. fers the report to OPS for investiga-
5101 et seq., or any regulation or order tion. Upon completion of the investiga-
issued thereunder shall, upon conviction and if appropriate, the Chief Coun-
tion, be subject for each offense to a sel refers the report to the Department
fine of not more than $5,000, imprison- of Justice for criminal prosecution of
ment for a term not to exceed 1 year, the offender.
or both. [Amdt. 190–6, 61 FR 18515, Apr. 26, 1996, as
(e) Any person who willfully and amended at 70 FR 11137, Mar. 8, 2005]
knowingly engages in excavation activ-
ity without first using an available SPECIFIC RELIEF
one-call notification system to estab- § 190.233 Corrective action orders.
lish the location of underground facili-
ties in the excavation area; or without (a) Except as provided by paragraph
(b) of this section, if the Associate Ad-
considering location information or
ministrator, OPS finds, after reason-
markings established by a pipeline fa-
able notice and opportunity for hearing
cility operator; and
in accord with paragraph (c) of this
(1) Subsequently damages a pipeline section and § 190.211(a), a particular
facility resulting in death, serious bod- pipeline facility to be hazardous to life,
ily harm, or property damage exceed- property, or the environment, the As-
ing $50,000; sociate Administrator, OPS shall issue
(2) Subsequently damages a pipeline an order pursuant to this section re-
facility and knows or has reason to quiring the owner or operator of the fa-
know of the damage but fails to cility to take corrective action. Cor-
promptly report the damage to the op- rective action may include suspended
erator and to the appropriate authori- or restricted use of the facility, phys-
ties; or ical inspection, testing, repair, replace-
(3) Subsequently damages a haz- ment, or other appropriate action.
ardous liquid pipeline facility that re- (b) The Associate Administrator,
sults in the release of more than 50 bar- OPS may waive the requirement for
rels of product; shall, upon conviction, notice and opportunity for hearing
be subject for each offense to a fine of under paragraph (a) of this section be-
not more than $5,000, imprisonment for fore issuing an order pursuant to this
section when the Associate Adminis-
a term not to exceed 5 years, or both.
trator, OPS determines that the failure
(f) No person shall be subject to
to do so would result in the likelihood
criminal penalties under paragraph (a) of serious harm to life, property, or the
of this section for violation of any reg- environment. However, the Associate
ulation and the violation of any order Administrator, OPS shall provide an
issued under § 190.217, § 190.219 or opportunity for a hearing as soon as is
380
practicable after the issuance of a com- ommendation to the Associate Admin-

pliance order. The provisions of para- istrator, OPS as to whether or not a
graph (c)(2) of this section apply to an corrective action order is required.
owner or operator’s decision to exercise Upon receipt of the recommendation,
its opportunity for a hearing. The pur- the Associate Administrator, OPS shall
pose of such a post-order hearing is for proceed in accordance with paragraphs
the Associate Administrator, OPS to (d) through (h) of this section. If the
determine whether a compliance order Associate Administrator, OPS finds the
should remain in effect or be rescinded facility is or would be hazardous to
or suspended in accord with paragraph life, property, or the environment, the
(g) of this section. Associate Administrator, OPS shall
(c) Notice and hearing: issue a corrective action order in ac-
(1) Written notice that OPS intends cordance with this section. If the Asso-
to issue an order under this section ciate Administrator, OPS does not find
shall be served upon the owner or oper- the facility is or would be hazardous to
ator of an alleged hazardous facility in life, property, or the environment, the
accordance with § 190.5. The notice Associate Administrator shall with-
shall allege the existence of a haz- draw the allegation of the existence of
ardous facility and state the facts and a hazardous facility contained in the
circumstances supporting the issuance notice, and promptly notify the owner
of a corrective action order. The notice or operator in writing by service as
shall also provide the owner or oper- prescribed in § 190.5.
ator with the opportunity for a hearing (d) The Associate Administrator,
and shall identify a time and location OPS may find a pipeline facility to be
where a hearing may be held. hazardous under paragraph (a) of this
(2) An owner or operator that elects section:
to exercise its opportunity for a hear- (1) If under the facts and cir-
ing under this section must notify the cumstances the Associate Adminis-
Associate Administrator, OPS of that trator, OPS determines the particular
election in writing within 10 days of facility is hazardous to life, property,
service of the notice provided under or the environment; or
paragraph (c)(1) of this section, or (2) If the pipeline facility or a compo-
under paragraph (b) of this section nent thereof has been constructed or
when applicable. The absence of such operated with any equipment, mate-
written notification waives an owner rial, or technique which the Associate
or operator’s opportunity for a hearing Administrator, OPS determines is haz-
and allows the Associate Adminis- ardous to life, property, or the environ-
trator, OPS to issue a corrective action ment, unless the operator involved
order in accordance with paragraphs demonstrates to the satisfaction of the
(d) through (h) of this section. Associate Administrator, OPS that,
(3) A hearing under this section shall under the particular facts and cir-
be presided over by an attorney from cumstances involved, such equipment,
the Office of Chief Counsel, Pipeline material, or technique is not haz-
and Hazardous Materials Safety Ad- ardous.
ministration, acting as Presiding Offi- (e) In making a determination under
cial, and conducted without strict ad- paragraph (d) of this section, the Asso-
herence to formal rules of evidence. ciate Administrator, OPS shall con-
The Presiding Official presents the al- sider, if relevant:
legations contained in the notice (1) The characteristics of the pipe
issued under this section. The owner or and other equipment used in the pipe-
operator of the alleged hazardous facil- line facility involved, including its age,
ity may submit any relevant informa- manufacturer, physical properties (in-
tion or materials, call witnesses, and cluding its resistance to corrosion and
present arguments on the issue of deterioration), and the method of its
whether or not a corrective action manufacture, construction or assem-
order should be issued. bly;

(4) Within 48 hours after conclusion (2) The nature of the materials trans-
of a hearing under this section, the ported by such facility (including their
Presiding Official shall submit a rec- corrosive and deteriorative qualities),
381
§ 190.235 49 CFR Ch. I (10–1–11 Edition)
the sequence in which such materials enforce orders issued under this section
are transported, and the pressure re- by appropriate means.
quired for such transportation; [70 FR 11138, Mar. 8, 2005]
(3) The characteristics of the geo-
graphical areas in which the pipeline § 190.235 Civil actions generally.
facility is located, in particular the cli-
Whenever it appears to the Associate
matic and geologic conditions (includ-
Administrator, OPS that a person has
ing soil characteristics) associated
engaged, is engaged, or is about to en-
with such areas, and the population
gage in any act or practice consti-
density and population and growth pat-
tuting a violation of any provision of 49
terns of such areas;
U.S.C. 60101 et seq., or any regulations
(4) Any recommendation of the Na-
issued thereunder, the Administrator,
tional Transportation Safety Board
PHMSA, or the person to whom the au-
issued in connection with any inves-
thority has been delegated, may re-
tigation conducted by the Board; and
quest the Attorney General to bring an
(5) Such other factors as the Asso-
action in the appropriate U.S. District
ciate Administrator, OPS may consider
Court for such relief as is necessary or
appropriate.
appropriate, including mandatory or
(f) A corrective action order shall
prohibitive injunctive relief, interim
contain the following information:
equitable relief, civil penalties, and pu-
(1) A finding that the pipeline facility
nitive damages as provided under 49
is hazardous to life, property, or the
U.S.C. 60120 and 49 U.S.C. 5123.
environment.
(2) The relevant facts which form the [70 FR 11139, Mar. 8, 2005]
basis of that finding.
(3) The legal basis for the order. § 190.237 Amendment of plans or pro-
(4) The nature and description of any cedures.
particular corrective action required of (a) A Regional Director begins a pro-
the respondent. ceeding to determine whether an opera-
(5) The date by which the required tor’s plans or procedures required
corrective action must be taken or under parts 192, 193, 195, and 199 of this
completed and, where appropriate, the subchapter are inadequate to assure
duration of the order. safe operation of a pipeline facility by
(6) If the opportunity for a hearing issuing a notice of amendment. The no-
was waived pursuant to paragraph (b) tice shall provide an opportunity for a
of this section, a statement that an op- hearing under § 190.211 of this part and
portunity for a hearing will be avail- shall specify the alleged inadequacies
able at a particular time and location and the proposed action for revision of
after issuance of the order. the plans or procedures. The notice
(g) The Associate Administrator, shall allow the operator 30 days after
OPS shall rescind or suspend a correc- receipt of the notice to submit written
tive action order whenever the Asso- comments or request a hearing. After
ciate Administrator, OPS determines considering all material presented in
that the facility is no longer hazardous writing or at the hearing, the Asso-
to life, property, or the environment. ciate Administrator, OPS shall deter-
When appropriate, however, such a re- mine whether the plans or procedures
scission or suspension may be accom- are inadequate as alleged and order the
panied by a notice of probable viola- required amendment if they are inad-
tion issued under § 190.207. equate, or withdraw the notice if they
(h) At any time after a corrective ac- are not. In determining the adequacy
tion order issued under this section has of an operator’s plans or procedures,
become effective, the Associate Admin- the Associate Administrator, OPS shall
istrator, OPS may request the Attor- consider:
ney General to bring an action for ap- (1) Relevant available pipeline safety
propriate relief in accordance with data;
§ 190.235. (2) Whether the plans or procedures

(i) Upon petition by the Attorney are appropriate for the particular type
General, the District Courts of the of pipeline transportation or facility,
United States shall have jurisdiction to and for the location of the facility;
382
(3) The reasonableness of the plans or provide an opportunity for informal

procedures; and consultation concerning the proposed
(4) The extent to which the plans or safety order. Such informal consulta-
procedures contribute to public safety. tion shall commence within 30 days,
(b) The amendment of an operator’s provided that PHMSA may extend this
plans or procedures prescribed in para- time by request or otherwise for good
graph (a) of this section is in addition cause. Informal consultation provides
to, and may be used in conjunction an opportunity for the respondent to
with, the appropriate enforcement ac- explain the circumstances associated
tions prescribed in this subpart. with the risk condition(s) identified in
[Amdt. 190–3, 56 FR 31090, July 9, 1991, as the notice and, where appropriate, to
amended by Amdt. 190–6, 61 FR 18516, Apr. 26, present a proposal for corrective ac-
1996] tion, without prejudice to the opera-
tor’s position in any subsequent hear-
§ 190.239 Safety orders. ing. If the respondent and Regional Di-
(a) When may PHMSA issue a safety rector agree within 30 days of the infor-
order? If the Associate Administrator, mal consultation on a plan for the op-
OPS finds, after notice and an oppor- erator to address each risk condition,
tunity for hearing under paragraph (b) they may enter into a written consent
of this section, that a particular pipe- agreement and the Associate Adminis-
line facility has a condition or condi- trator may issue a consent order incor-
tions that pose a pipeline integrity risk porating the terms of the agreement. If
to public safety, property, or the envi- a consent agreement is reached, no fur-
ronment, the Associate Administrator ther hearing will be provided in the
may issue an order requiring the oper- matter and any pending hearing re-
ator of the facility to take necessary quest will be considered withdrawn. If
corrective action. Such action may in- a consent agreement is not reached
clude physical inspection, testing, re- within 30 days of the informal con-
pair or other appropriate action to sultation (or if informal consultation is
remedy the identified risk condition. not requested), the Associate Adminis-
(b) How is an operator notified of the trator may proceed under paragraphs
proposed issuance of a safety order and (b)(3) through (5) of this section. If
what are its response options? (1) Notice PHMSA subsequently determines that
of proposed safety order. PHMSA will an operator has failed to comply with
serve written notice of a proposed safe- the terms of a consent order, PHMSA
ty order under § 190.5 to an operator of may obtain any administrative or judi-
the pipeline facility. The notice will al- cial remedies available under 49 U.S.C.
lege the existence of a condition that 60101 et seq. and this part. If a consent
poses a pipeline integrity risk to public agreement is not reached, any admis-
safety, property, or the environment, sions made by the operator during the
and state the facts and circumstances informal consultation shall be excluded
that support issuing a safety order for from the record in any subsequent
the specified pipeline or portion there- hearing. Nothing in this paragraph (b)
of. The notice will also specify pro- precludes PHMSA from terminating
posed testing, evaluations, integrity the informal consultation process if it
assessment, or other actions to be has reason to believe that the operator
taken by the operator and may propose is not engaging in good faith discus-
that the operator submit a work plan sions or otherwise concludes that fur-
and schedule to address the conditions ther consultation would not be produc-
identified in the notice. The notice will tive or in the public interest.
also provide the operator with its re- (3) Hearing. An operator receiving a
sponse options, including procedures notice of proposed safety order may
for requesting informal consultation contest the notice, or any portion
and a hearing. An operator receiving a thereof, by filing a written request for
notice will have 30 days to respond to a hearing within 30 days following re-
the PHMSA official who issued the no- ceipt of the notice or within 10 days
tice. following the conclusion of informal
(2) Informal consultation. Upon timely consultation that did not result in a
request by the operator, PHMSA will consent agreement, as applicable. In
383
§ 190.239 49 CFR Ch. I (10–1–11 Edition)
the absence of a timely request for a condition or conditions that pose a

hearing, the Associate Administrator pipeline integrity risk to public safety,
may issue a safety order in the form of property, or the environment.
the proposed order in accordance with (c) How is the determination made
paragraphs (c) through (g) of this sec- that a pipeline facility has a condition
tion. that poses an integrity risk? The Asso-
(4) Conduct of hearing. An attorney ciate Administrator, OPS may find a
from the Office of Chief Counsel, pipeline facility to have a condition
PHMSA, will serve as the Presiding Of- that poses a pipeline integrity risk to
ficial in a hearing under this section. public safety, property, or the environ-
The hearing will be conducted infor- ment under paragraph (a) of this sec-
mally, without strict adherence to for- tion:
mal rules of evidence in accordance (1) If under the facts and cir-
with § 190.211. The respondent may sub- cumstances the Associate Adminis-
mit any relevant information or mate- trator determines the particular facil-
rials, call witnesses, and present argu- ity has such a condition; or
ments on the issue of whether a safety (2) If the pipeline facility or a compo-
order should be issued to address the nent thereof has been constructed or
alleged presence of a condition that operated with any equipment, mate-
poses a pipeline integrity risk to public rial, or technique with a history of
safety, property, or the environment. being susceptible to failure when used
(5) Post-hearing action. Following a in pipeline service, unless the operator
hearing under this section, the Pre- involved demonstrates that such equip-
siding Official will submit a rec- ment, material, or technique is not
ommendation to the Associate Admin- susceptible to failure given the manner
istrator concerning issuance of a final it is being used for a particular facil-
safety order. Upon receipt of the rec- ity.
ommendation, the Associate Adminis- (d) What factors must PHMSA con-
trator may proceed under paragraphs sider in making a determination that a
(c) through (g) of this section. If the risk condition is present? In making a
Associate Administrator finds the fa- determination under paragraph (c) of
cility to have a condition that poses a this section, the Associate Adminis-
pipeline integrity risk to public safety, trator, OPS shall consider, if relevant:
property, or the environment, the As- (1) The characteristics of the pipe
sociate Administrator will issue a safe- and other equipment used in the pipe-
ty order under this section. If the Asso- line facility involved, including its age,
ciate Administrator does not find that manufacturer, physical properties (in-
the facility has such a condition, or cluding its resistance to corrosion and
concludes that a safety order is other- deterioration), and the method of its
wise not warranted, the Associate Ad- manufacture, construction or assem-
ministrator will withdraw the notice bly;
and promptly notify the operator in (2) The nature of the materials trans-
writing by service as prescribed in ported by such facility (including their
§ 190.5. Nothing in this subsection pre- corrosive and deteriorative qualities),
cludes PHMSA and the operator from the sequence in which such materials
entering into a consent agreement at are transported, and the pressure re-
any time before a safety order is quired for such transportation;
issued. (3) The characteristics of the geo-
(6) Termination of safety order. Once graphical areas where the pipeline fa-
all remedial actions set forth in the cility is located, in particular the cli-
safety order and associated work plans matic and geologic conditions (includ-
are completed, as determined by ing soil characteristics) associated
PHMSA, the Associate Administrator with such areas;
will notify the operator that the safety (4) For hazardous liquid pipelines, the
order has been lifted. The Associate proximity of the pipeline to an unusu-
Administrator shall suspend or termi- ally sensitive area;

nate a safety order whenever the Asso- (5) The population density and
ciate Administrator determines that growth patterns of the area in which
the pipeline facility no longer has a the pipeline facility is located;
384
(6) Any relevant recommendation of § 190.303 Delegations.

the National Transportation Safety
For the purposes of this subpart, Ad-
Board issued in connection with any
ministrator means the Administrator,
investigation conducted by the Board;
Pipeline and Hazardous Materials Safe-
(7) The likelihood that the condition
ty Administration, or his or her dele-
will impair the serviceability of the
gate.
pipeline;
(8) The likelihood that the condition [Amdt. 190–8, 61 FR 50909, Sept. 27, 1996, as
will worsen over time; and amended at 70 FR 11137, Mar. 8, 2005]
(9) The likelihood that the condition
is present or could develop on other § 190.305 Regulatory dockets.
areas of the pipeline. (a) Information and data considered
(e) What information will be included relevant by the Administrator relating
in a safety order? A safety order shall to rulemaking actions, including no-
contain the following: tices of proposed rulemaking; com-
(1) A finding that the pipeline facility ments received in response to notices;
has a condition that poses a pipeline petitions for rulemaking and reconsid-
integrity risk to public safety, prop- eration; denials of petitions for rule-
erty, or the environment; making and reconsideration; records of
(2) The relevant facts which form the additional rulemaking proceedings
basis of that finding; under § 190.325; and final regulations
(3) The legal basis for the order; are maintained by the Pipeline and
(4) The nature and description of any Hazardous Materials Safety Adminis-
particular corrective actions to be re- tration at 1200 New Jersey Avenue, SE,
quired of the operator; and Washington, D.C. 20590–0001.
(5) The date(s) by which the required (b) Once a public docket is estab-
corrective actions must be taken or lished, docketed material may be
completed and, where appropriate, the accessed at http://www.regulations.gov.
duration of the order. Public comments also may be sub-
(f) Can PHMSA take other enforce- mitted at http://www.regulations.gov.
ment actions on the affected facilities? Comment submissions must identify
Nothing in this section precludes the docket number. You may also ex-
PHMSA from issuing a Notice of Prob- amine public docket material at the of-
able Violation under § 190.207 or taking fices of the Docket Operations Facility
other enforcement action if noncompli- (M–30), U.S. Department of Transpor-
ance is identified at the facilities that tation, West Building, First Floor,
are the subject of a safety order pro- Room W12–140, 1200 New Jersey Avenue,
ceeding. SE., Washington, DC 20590. You may
obtain a copy during normal business
[73 FR 16567, Mar. 28, 2008, as amended at 74
FR 2893, Jan. 16, 2009] hours, excluding Federal holidays, for a
fee, with the exception of material
which the Administrator of PHMSA de-
Subpart C—Procedures for termines should be withheld from pub-
Adoption of Rules lic disclosure under 5 U.S.C. 552(b) or
any other applicable statutory provi-
SOURCE: Amdt. 190–8, 61 FR 50909, Sept. 27, sion.
1996, unless otherwise noted.
[Amdt. 190–8, 61 FR 50909, Sept. 27, 1996, as
§ 190.301 Scope. amended at 70 FR 11137 and 11139, Mar. 8,
2005; 73 FR 16566, Mar. 28, 2008; 73 FR 16568,
This subpart prescribes general rule- Mar. 28, 2008]
making procedures for the issue,
amendment, and repeal of Pipeline § 190.307 Records.
Safety Program regulations of the Records of the Pipeline and Haz-
Pipeline and Hazardous Materials Safe- ardous Materials Safety Administra-
ty Administration of the Department tion relating to rulemaking pro-

of Transportation. ceedings are available for inspection as
[Amdt. 190–8, 61 FR 50909, Sept. 27, 1996, as provided in section 552(b) of title 5,
amended at 70 FR 11137, Mar. 8, 2005] United States Code, and part 7 of the
385

CFR 2011 Title49 Vol3 Part190 Subpartb

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§ 190.11 49 CFR Ch.

tation, response to a question, or an relevant to determining the compli-

(b) Inspections are ordinarily con- enforcement proceedings prescribed in

explanations, documents, testimony or (4) The Regional Director’s evalua-

the Associate Administrator, OPS may issued thereunder, is subject to a civil

§ 190.225 Assessment considerations. CRIMINAL PENALTIES

practicable after the issuance of a com- ommendation to the Associate Admin-

order should be issued. bly;

§ 190.235. (2) Whether the plans or procedures

(3) The reasonableness of the plans or provide an opportunity for informal

the absence of a timely request for a condition or conditions that pose a

Administrator shall suspend or termi- ally sensitive area;

(6) Any relevant recommendation of § 190.303 Delegations.

ty Administration of the Department tion relating to rulemaking pro-

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