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Federal Pipeline Safety Regulator Amends Administrative Enforcement Procedures

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule in today’s edition of the Federal Register that amends its administrative procedures for federal enforcement actions effective October 25, 2013.  The final rule is intended to comply with a mandate in Section 20 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, the most recent reauthorization of the federal pipeline safety laws.  Section 20 directed PHMSA to issue regulations that (1) require hearings to be convened before a dedicated “presiding official,” a term defined by statute as an attorney on the staff of the Deputy Chief Counsel that is not engaged in investigative or prosecutorial functions; (2) ensure the expedited review of corrective action orders, which are issued in cases where a pipeline facility is hazardous to life, property, or the environment; (3) create a separation of functions between agency personnel who perform investigatory and prosecutorial duties and those who are responsible for deciding the final outcome of cases; and (4) prohibit ex parte communications on relevant matters by the parties to those actions.  The final rule addresses these issues and includes some changes to the draft regulations that the agency published in an August 13, 2012 notice of proposed rulemaking.  The changes are largely based on comments submitted by industry trade organizations and the federal committee that advises PHMSA on pipeline safety matters.