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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PHMSA has issued a final rule making several significant changes to the Agency’s enforcement procedures. See attached Federal Register pre-publication release of PHMSA Final Rule (Sept. 24, 2013). While this rule purports to comply with various Congressional mandates set forth in the 2012 amendments to the Pipeline Safety Act, it effectively increases and establishes some new Agency enforcement tools.
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