Rule2022-09740
Administrative Rulemaking-Criminal Referrals
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 11, 2022
Effective
May 11, 2022
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
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).
Full Text
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<title>Federal Register, Volume 87 Issue 91 (Wednesday, May 11, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.phmsa.dot.gov/field-operations/operational-guidance/inspection-investigation-and-enforcement-manual-version-21">https://www.phmsa.dot.gov/field-operations/operational-guidance/inspection-investigation-and-enforcement-manual-version-21</a>
(update forthcoming) and PHMSA Office of Pipeline Safety, ``Pipeline
Safety Enforcement Procedures,'' available at <a href="https://www.phmsa.dot.gov/pipeline/enforcement/pipeline-enforcement-procedures">https://www.phmsa.dot.gov/pipeline/enforcement/pipeline-enforcement-procedures</a> (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 (<a href="https://www.oig.dot.gov/fraud-hotline">https://www.oig.dot.gov/fraud-hotline</a>). 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 <a href="https://www.oig.dot.gov/hotline">https://www.oig.dot.gov/hotline</a>, 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 <a href="https://www.oig.dot.gov/hotline">https://www.oig.dot.gov/hotline</a>, 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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