PHMSA recently issued pre-publication copies of several rules and notices, which have now been formally published in the Federal Register, triggering various deadlines. On Friday, October 14, 2015, the Agency published (1) interim final emergency order rules authorizing the issuance of emergency orders to the entire industry in response to imminent hazards under certain conditions (effective immediately) and requesting industry comments within sixty days and (2) a final gas distribution excess flow valve rule, expanding requirements for excess flow valves in distribution service lines effective in six months. On Monday, October 17, 2016, the Agency for the first time published its civil penalty policy, noting that operators in enforcement proceedings may request a proposed civil penalty calculation in PHMSA enforcement actions.
We recommend that industry review these two final rules and civil penalty policy statement and consult their trade organizations. In particular, there are several significant ambiguities in PHMSA’s emergency order interim rules that may require clarification and revision. In addition, operators with pending enforcement matters before the Agency should consider requesting associated penalty calculations. Relevant deadlines associated with these rules and notices are summarized below.
- Emergency Order Interim Final Rule: Effective October 14, 2016; comments due by December 13, 2016 for consideration in forthcoming PHMSA final regulations (due by statute on March 19, 2017).
- Distribution Excess Flow Valve Final Rule: Effective on April 14, 2017 (no further comments accepted).
- Civil Penalty Policy: Now accessible on PHMSA’s website and effective October 17, 2016. A respondent in an enforcement case may now request a proposed civil penalty calculation related to that case (no comments invited or likely considered on this policy, but no prohibition on submitting them).