Creating a record in PHMSA enforcement actions is an important step toward protecting and preserving the legal rights of pipeline owners and operators.  If an operator seeks judicial review of the Agency’s final decision in an enforcement action, the administrative record will be a key component of the case.  The Pipeline Safety Act requires that any request for judicial review of final agency action be brought in a federal court of appeals.  Such courts do not hear witnesses or find facts; they rely solely on the administrative record presented, and the briefs and legal arguments of counsel.  For that reason, the written transcription of any administrative enforcement hearing is likely to be an essential part of that record.  Just a few months since PHMSA promulgated revisions to its procedural regulations at 49 C.F.R. Part 190 (see prior pipelinelaw alert), the Agency has indicated if an operator wishes to have a hearing transcribed, it must arrange for a court reporter to be physically present to transcribe the proceedings.  This is a new interpretation of PHMSA regulations, and one that was not clearly articulated in the Agency’s rulemaking preambles.  Final Rule, 78 Fed. Reg. 58897 (Sep. 25, 2013); NPRM, 77 Fed. Reg. 48112 (Aug. 13, 2012).

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In light of recent high profile pipeline incidents, PHMSA, among other federal agencies, is experiencing an unprecedented number of requests for disclosure of information under the Freedom of Information Act (FOIA) at 5 U.S.C. 552, et seq.  These requests often come from Congress, citizen groups, or other administrative agencies such as the NTSB.  FOIA, referred to as the public “right to know” statute, provides that any person has the right to obtain access to federal agency records, except to the extent that portions of those records are protected from public disclosure by one of 9 exemptions.  Most federal agencies have their own FOIA regulations.  For example, the Department of Transportation includes the FOIA statutory exemptions at 49 C.F.R. Part 7.13 and provides that the Agency’s policy is to make records available to the public to the greatest extent possible, including “providing reasonably segregable information from documents that contain information that may be withheld.”

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Under OPA 90, certain pipeline operators must prepare Facility Response Plans (FRPs), submit them to PHMSA, and review and revise them every five years (49 CFR Part 194). After the Deepwater Horizon incident, PHMSA reminded operators, among other things, to submit updates to their FRPs within thirty days if new or different operating conditions could

PHMSA regulations for both oil and gas pipelines require operators to provide protection against fault currents or lightning impacts on buried pipe.  See 49 C.F.R. parts 192.467(f); 195.575(e).  These rules obligate operators to electrically isolate buried or submerged pipelines from other metallic structures.  Examples of the types of interference that may occur include close proximity

Effective Jan. 1, 2012, all liquid and gas pipeline operators must now obtain an Operator Identification (OPID) number.  The forms for doing this are available on PHMSA’s website, and become part of the National Registry of Pipeline and LNG operators.  An operator may use one number for its entire system, or obtain different numbers for