United States v. Pacific Gas & Electric Co. (178 F. Supp. 3d 927, 2016)

ORDER ON MOTIONS IN LIMINE

THELTON E. HENDERSON, United ' States District Judge

Defendant Pacific Gas and Electric Company (“PG&E”) and the Government submitted simultaneous motions in limine on January 11, 2016. Dkt. Nos. 236, 237. Both parties timely opposed and replied in support of their respective motions. Dkt. Nos. 277, 281, 300, 308. The Court held limited oral argument on April 12, 2016. After carefully considering the parties’ written and oral arguments, the Court now GRANTS IN PART and DENIES IN PART the parties’ motions in limine, as set forth below.

BACKGROUND

On September 9, 2010, a gas line owned and operated by PG&E ruptured, causing significant , damage to a residential community in San Bruno, California. Superseding Indictment (“SI”) ¶ 6 (Dkt. No. 22). PG&E stands charged with one count of obstructing the National Transportation Safety Board (“NTSB”) investigation that followed the San Bruno explosion. Id. ¶ 61. PG&E is also charged with 12 counts of violating the minimum federal safety standards for the transportation of natural gas by pipeline (“Pipeline Safety Act”), as set forth in 49 C.F.R. pt. 192 (“Part 192”). Id. ¶¶ 62-75. Congress criminalized “knowing and willful” violations of these minimum standards under 49 U.S.C. § 60123 (“Section 60123”).

I. Count 1: Obstruction

The NTSB began an investigation immediately after the San Bruno explosion, examining the cause of the explosion, the characteristics and history of the failed pipe, the adequacy of PG&E’s emergency response, and PG&E’s operations. SI ¶¶ 54-55. The investigation revealed a number of deficiencies in PG&E’s record-keeping, integrity management program, and maintenance practices as they related to various sections of the pipeline, including the line that ruptured — Line 132. Id. The agency concluded that these deficiencies were a probable cause of the explosion. Id.

As part of its investigation, “the NTSB sent PG&E a series of data requests concerning instances where PG&E’s planned and unplanned pressure increases exceeded the 5-year MOPs and/or MAOPs of pipelines in HCAs.” Id. ¶ 56. HCAs, or high consequence areas, are densely populated locales where a release of gas could pose a significant risk of injury or death, 49 C.F.R. § 192.903; the 5-year MOP is the “maximum operating pressure experienced during the preceding five years,” 49 C.F.R. § 192.917(e)(3)(i); and the MAOP is the “maximum allowable operating pressure” for a pipeline segment, 49 C.F.R. § 192.903.

In response to the NTSB data requests, PG&E provided a copy of Risk Management Instruction-06 (“RMI-06”), an internal policy document that stated “PG&E would only consider a manufacturing threat as unstable if the pressure on the line exceeded the 5-year MOP by 10%.” SI ¶ 57. The Pipeline Safety Act makes no such “10% or more” allowance. See 49 C.F.R. § 192.917(e) (“If an operator identifies any of the following threats, the operator must.. .address -the threat.. .[including] [operating pressure increases above the [MOP] experienced during the preceding five years.”).

On April 6, 2011, PG&E sent a letter to the NTSB (1) explaining that the “10% or more”, version of RMI-06 that had previously been disclosed was actually an “unapproved draft,” and (2) attaching another version of RMI-06 that did not include the “10% or more” policy. SI ¶ 69. The Government alleges that what PG&E did not disclose in this letter is that its integrity management group had actually followed the “10% or more” policy set forth in the original copy of RMI-06, whether or not that policy was formally approved and despite knowing that such a policy violated the Pipeline Safety Act. Id. ¶ 60.

On the basis of this conduct, the indictment charges that PG&E “did corruptly influence, obstruct, and impede” the NTSB investigation. Id. ¶ 61.

II. Counts 2-13: Pipeline Safety Act Violations

Counts 2-13 allege knowing and willful violations of the Pipeline Safety Act.

Counts 2 and 5-8 allege violations of Part 192’s Subpart O, known as the Integrity Management (“IM”) regulations. Id. ¶¶ 62-63, 66-73. Count 2 charges PG&E with violating 49 C.F.R. § 192.917(b), which states that “[t]o identify and evaluate the potential threats to a covered pipeline segment, an operator must gather and integrate existing data and information on the entire pipeline that could be relevant to the covered segment,” on two pipelines: Lines 132 and 109. Id. ¶63. Count 5 charges PG&E with violating 49 C.F.R. § 192.917(a), which states that “[a]n operator must identify and evaluate all potential threats to each covered pipeline segment,” on three pipelines: Lines 132, 153, and DFM 1816-01. Id. ¶67. Count 6 charges PG&E with violating 49 C.F.R. § 192.919, which states that “[a]n operator must include [certain] elements in its written baseline assessment plan,” on six pipelines: Lines 132, 153, DFM 1816-01, 107, 191-1, and 109. Id. ¶ 69. Count 7 charges PG&E with violating 49 C.F.R. § 192.917(e)(3), which states that “[i]f an operator identifies the threat of manufacturing and construction defects (including seam defects) in the covered segment, an operator must analyze the covered segment to determine the risk of failure from these defects,” and if certain changes occur, that “an operator must prioritize the covered segment as a high risk segment for the baseline assessment or a subsequent reassessment,” on four pipelines: Lines 132, 153, DFM 1816-01, and 109. Id. ¶71. Count 8 charges PG&E with violating 49 C.F.R. § 192.917(e)(4), which states that “[i]f a covered pipeline segment contains [certain characteristics], an operator must select an assessment technology or technologies with a proven application capable of assessing seam integrity and seam corrosion anomalies, [and] must prioritize the covered segment as a high risk segment for the baseline assessment or a subsequent reassessment,” on five pipelines: Lines DFM 1816-01, 191-1, 109, 107, and 132. Id. ¶ 73.

Counts 3-4 and 9-13 allege that PG&E’s recordkeeping practices fell below the standards required of Part 192’s record-keeping provisions. Counts 3-4 charge PG&E with violating 49 C.F.R. § 192.709(a), which requires pipeline operators to maintain and retain the “date, location, and description of each repair made to pipe...for as long as the pipe remains in service.” Id. ¶ 65. Counts 9-13 charge PG&E with violating 49 C.F.R. § 192.517(a), which requires that pipeline operators “make, and retain for the useful life of the pipeline, a record of each [pressure] test performed” pursuant to certain other provisions of Part 192. Id. ¶ 75.

LEGAL STANDARD

Federal Rule of Evidence (“Rule”) 401 states that evidence is relevant if it “has any tendency to make a fact more or less probable’” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. Rule 402 creates a general presumption that relevant evidence is admissible unless otherwise prohibited. Fed. R. Evid. 402. Rule 403 allows the court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of sonde concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). That is, unfairly prejudicial evidence is evidence having “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Id. (citation and internal quotation marks omitted). In weighing unfair prejudice, “what counts as the Rule 403 ‘probative value’ of an item of evidence, as distinct from its Rule 401 ‘relevance,’ may be calculated by comparing evidentiary alternatives.” Id. at 184,117 S.Ct. 644.

“Rulings on admissibility of evidence normally should be - deferred until trial, so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context.” In re Air Crash Disaster at Sioux City, Iowa, 1991 WL 279284, at *1 (N.D.Ill. Dec. 26, 1991).

PG&E’S MOTIONS IN LIMINE

I. PG&E’s Motion in Limine No. 1

PG&E moves to exclude: “All evidence and argument relating to the San Bruno accident, including: (a) the accident itself and its causes; (b) PG&E’s work clearance for the work-done at Milpitas Terminal on September 9, 2010, PG&E’s pre-incident work clearance procedures, and the work performed at Milpitas; and (c) PG&E’s emergency response.” Def.’s Mots, in Limine Nos. 1-10 (“PG&E Mot.”) at ii (Dkt. No. 273).

The Government does not oppose PG&E’s motion with respect to either PG&E’s Milpitas work clearance and procedures (request (b)) or PG&E’s emergency response to the explosion (request (c)). U.S.’s Resp. to Def.’s Mots, in Limine (“Gov’t Opp’n”) at 1 (Docket No. 277). Accordingly, PG&E’s first motion in li-mine is hereby GRANTED with respect to these categories.

With respect to category (a), regarding the San Bruno explosion itself, PG&E correctly argues that this Court previously ruled that the explosion is not an element of any charged offense. PG&E Mot. at 7. But PG&E misreads the Court’s prior order, to the extent it reads the order as holding the explosion is not relevant to any charged offense,

a. Evidence of the San Bruno explosion is relevant.

The San Bruno explosion is unquestionably relevant to all thirteen counts that remain to be tried in this case. The Court has already concluded that the Superseding Indictment’s references to the explosion are relevant non-surplusage, as to both the obstruction and Pipeline Safety Act counts. Order Den. Def.’s Mot. to Strike Surplusage (“Surplusage Order”) at 3-9 (Dkt. No. 43). These conclusions apply with equal, or perhaps greater force in the context of trial.

As to the obstruction count, the Court has previously held, and holds again now:

The relevance of identifying the subject of the investigation goes beyond merely providing context. The specific intent required for obstruction of justice under the applicable statute is that PG&E must have acted “corruptly,” meaning that “the act must be done with the purpose of obstructing justice.” U.S. v. Laurins, 857 F.2d 529, 536-37 (9th Cir.1988). Because the Government must prove this criminal purpose beyond a reasonable doubt at trial, the subject and scope of the investigation is directly relevant, regardless of the standard of relevance applied by the Court. It would be exceedingly difficult for a jury to determine the mens rea of PG&E’s obstructive actions without knowing the nature of the investigation and the potential consequences of an adverse finding by the NTSB, which would provide a strong motivation for obstruction .... [Wjhile the subject of the NTSB investigation is not technically an element of the prima facie case for obstruction, it is... necessary to prove PG&E’s intent to obstruct the ongoing investigation.

Surplusage Order at 6-7 (emphasis in original).

As to the Pipeline Safety Act counts, the Court likewise affirms its prior holding that the “explosion makes it at least somewhat more likely that the pipeline was improperly maintained,” in violation of the Pipeline Safety Act. Id. at 7-8. To be clear, the Court does not commit the “logical fallacy” that PG&E cautions against. PG&E Mot. at 9. By holding that the explosion is relevant to the Pipeline Safety Act counts, the Court does not hold that the alleged Pipeline Safety Act violations must have caused the explosion. The Court merely recognizes that evidence of the explosion “has [a] tendency to make a fact”— he violation of regulations that are by definition in place to prevent the consequences of a pipeline explosion — “more [ ] probable than it would be without the evidence.” Fed. R. Evid. 401(a); see also 49 U.S.C. § 60102(a)(1) (“The purpose of this chapter is to provide adequate protection against risks to life and property posed by pipeline transportation and pipeline facilities by improving the regulatory and enforcement authority of the Secretary of Transportation.”).

b. Evidence of the San Bruno explosion is not per se unduly prejudicial.

While evidence of the San Bruno explosion is legally relevant, the admissibility inquiry does not end with relevance. PG&E also argues that the San Bruno evidence is unfairly prejudicial under Rule 403. PG&E Mot. at 8,10,12.

i. The San Bruno evidence is highly probative.

PG&E is incorrect to argue that “[t]he probative value [of San Bruno evidence] is necessarily low as it does not go to any element of the charged conduct.” Id. at 16 (citing United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005)). The San Bruno evidence does go to an element of the obstruction count; as discussed above, the explosion informs the “corrupt intent” that is required for that count.

Moreover, the Government is not required to prove the obstruction count in a vacuum: “A jury is entitled to know the circumstances and background of a criminal charge. It cannot be expected to make its decision in a void — without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.” United States v. Daly, 974 F.2d 1215, 1217 (9th Cir.1992) (quoting United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984)). The San Bruno explosion provides necessary context as to both the reasons for the NTSB investigation and PG&E’s potential motives for obstructing it. Though PG&E argues that it “could face no ‘potential consequences’... because NTSB investigations do not determine ‘the rights or liabilities of any person,’ ” Reply in Supp. of Def.’s Mots, in Limine Nos. 1-10 (“PG&E Reply”) at 2 (Dkt. No. 308), the Court rejects the notion that a potential finding that PG&E’s conduct was the “probable cause” of the accident was inconsequential to PG&E.

Finally, though PG&E has offered to “stipulate to the existence, subject and scope of the NTSB investigation into a pipe failure,” the Government “is entitled to prove its case by evidence of its own choice, or, more exactly, [ ] a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief, 519 U.S. at 186-87, 117 S.Ct. 644. And again, the probative value of the San Bruno evidence extends beyond the NTSB’s investigation into a “pipe failure” to include at least the fact that the investigation followed a deadly explosion.

ii. The probative value of the San Bruno evidence is not per se outweighed by unfair prejudice.

None of the cases cited by PG&E suggest that the San Bruno evidence’s probative value is per se substantially outweighed by a risk of unfair prejudice. The chief case PG&E relies on is United States v. Gonzalez-Florez, 418 F.3d 1093 (9th Cir.2005). There, the defendant was convicted on one count of bringing illegal aliens to the United States. 418 F.3d at 1095. The Ninth Circuit held that evidence that two young women had been injured in the process was inadmissible under Rule 403:

As a logical matter, the fact that two girls in Gonzalez’s group suffered heat stroke does not affect the probability (1) that Gonzalez brought aliens into the United States other than at a recognized port of entry, (2) that Gonzalez knew they were aliens, or (3) that Gonzalez intended to violate U.S. immigration law by bringing them in. The heat stroke is a mere detail in the story of the offense.

Id. at 1098 (emphasis added).

Unlike Gonzalez-Flores, however, the San Bruno explosion does affect the probability, both that PG&E obstructed the NTSB investigation and that PG&E violated the relevant Part 192 regulations. Though PG&E argues that “the fact that an explosion is possible does not affect the probability that PG&E intended to violate the charged regulations,” PG&E Mot. at 10, this characterization misses the point. It is not the fact that an explosion is possible that matters, it is the fact that an explosion actually happened. Evidence of the explosion is likewise not a “mere detail” in either the obstruction or Pipeline Safety Act counts, for all of the reasons set forth above.

A closer case on these facts is United States v. Mix, Crim. No. 12-171, 2013 U.S. Dist. LEXIS 64919 (E.D.La. May 7, 2013). In Mix, the defendant was charged with obstructing the grand jury investigation into the Deepwater Horizon explosion and oil spill. Defendant moved to exclude any reference to the eleven deaths that resulted, the size of the spill, and the flow rate during efforts to stop the spill. 2013 U.S. Dist. LEXIS 64919, at *2-3. In excluding evidence of the deaths and size of the spill, the court noted that “the fact of the explosion and the duration of the spill” was “relevant to the foreseeability of the grand jury investigation and defendant’s motive.” Id. at *4, The court also permitted references to the flow rate because they “provide[d] needed context for attempting to discern Mix’s motive and intent as well as specific evidence relevant to the critical issues of defendant’s motive and intent.” Id. at 6. As in Mix, some San Bruno evidence is relevant to PG&E’s motive and intent.

Moreover, the Supreme Court explained in Old Chief that, as the party with the burden of proof, the prosecution has a “need for evidentiary richness and narrative integrity in presenting a case.” 519 U.S. at 183, 117 S.Ct. 644. This remains true even when the evidence may produce an emotional response. See United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir.2008) (“The court, is not required to scrub the trial clean of all evidence that may have an emotional impact.”). And this is especially true where the challenged evidence goes to the law’s very foundation: “[T]he evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment.” Old Chief, 519 U.S. at 187-88, 117 S.Ct. 644. As PG&E knows well, avoiding accidents like the San Bruno explosion is the very purpose of the Pipeline Safety Act. 49 U.S.C. § 60102(a)(1).

iii. The evidence must be considered on a case-by-case basis.

The Court recognizes, however, that the Government cannot “structure a trial in whatever way would produce the maximum unfair prejudice consistent with relevance.” Old Chief, 519 U.S. at 183, 117 S.Ct. 644. Accordingly, the Court must consider the Government’s proffered San Bruno evidence on a case-by-case basis to guarantee that each item’s probative value is not substantially outweighed by a risk of unfair prejudice. To that end, the Court identifies and balances below each item of San Bruno evidence that has come up in the parties’ briefing on their respective motions in- limine. Though this discussion is non-exhaustive, the parties are invited to use it as a guide as they prepare evidence and consider objections for trial.

The probative value of the following items is substantially outweighed by the risk of unfair prejudice, and these items are therefore inadmissible: “[i]mages of the explosion site, testimony about the fire, and statistics regarding the number of deaths, injuries, and houses damaged and destroyed,” Gov’t Opp’n at 4; “a brief video clip as well as a few photographs of the explosion scene,” id. at 5; “video footage or photographs depicting the deceased or people engulfed in flames; graphic descriptions of the burns victims suffered; testimony about the deaths of loved ones by their children, parents, or spouses; or recordings of panic-stricken 9-1-1 calls,” id.; “witness firefighter Scott Waldvogel, a first responder who will describe the fire and his challenges getting water to combat it because the explosion damaged the entire grid from which nearby hydrants drew water,” id.; and a jury viewing of the portion of Line 132, on Segment 180, that exploded, see infra § XI (denying the Government’s first motion in limine). Moreover, the probative value of testimony that PG&E’s substandard recordkeeping or Integrity Management Program caused the San Bruno explosion is substantially outweighed by a risk of confusing the issues, as the jury is not tasked with determining the cause of the explosion. The following evidence and testimony is therefore inadmissible: that “PG&E’s intentional pressure spikes did in fact cause the crack [in Segment 180] to grow,” id. at 3; that “hy-drotesting. . .would have caused the pipe to burst,” id.; and testimony that if “PG&E properly kept its records and tested Line 132, the San Bruno explosion never would have occurred,” id.

The probative value of the following items is not substantially outweighed by the risk of unfair prejudice, and these items are therefore admissible: the fact of the deadly explosion; “a map of the explosion site, denoting the houses that were damaged,” id. at 5;“witnesses from the NTSB and other government entities involved in investigating the explosión,” id. (within the boundaries discussed above); and NTSB reports, see infra § II (discussing the limitations on such reports).

c. This limited introduction of San Bruno evidence will not confuse the issues, mislead the jury, or waste time.

PG&E also argues that San Bruno evidence should be excluded under Rule 403 because it “would involve an extended trial on the metallurgical cause of the .accident, the investigation into the cause of the accident, and ultimately risk confusing the jury and wasting time.” PG&E Mot. at 13. As discussed above, however, the Government is not permitted to argue that PG&E’s recordkeeping or maintenance caused the explosion, so PG&E’s concerns are unwarranted. Moreover, PG&E need not prove or disprove the metallurgical cause of the San Bruno explosion just to counter the Government’s limited introduction of evidence. Indeed, PG&E sufficiently explained the uncertainty surrounding the cause of the explosion in just four pages of briefing before this Court. Id. at 3-6. Accordingly, the Court rejects PG&E’s argument that the parties will need to “try” the San Bruno Explosion case in a way that would confuse the issues, mislead the jury, or waste time. Id. at 13-14.

II. PG&E’s Motion in Limine No. 2

PG&E moves to exclude: “All evidence and argument relating to the [NTSB] reports, opinions, conclusions, and recommendations relating to the San Bruno accident, including: (a) the NTSB final accident report, preliminary or interim report, factual reports, or accident brief, or drafts of any such reports; and (b) any conclusions, opinions, or recommendations contained in any of the above reports or briefs, or draft reports or briefs.” Id. at ii. PG&E also moves to “limit the testimony of NTSB witnesses to their firsthand factual observations.” Id. at 18.

a. Portions of NTSB reports may be admissible.

PG&E correctly argues that “NTSB Accident Reports are inadmissible in suits or actions for damages arising from matters under investigation.” Id. at 17; see also 49 U.S.C. § 1154(b) (“No part of a report of the Board... may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report”). But this is not a suit or action for damages, it is a criminal prosecution. And the regulations governing the use of NTSB accident reports in criminal prosecutions — “Part 835” — limit only the testimony of NTSB employees. Indeed, the stated purpose of those regulations is to “prescribe! ] policies and procedures regarding the testimony of employees of the [NTSB] in suits or actions for damages and criminal proceedings arising out of transportation acci-dents_” 49 C.F.R. § 835.1 (emphasis added).

Though Part 835 mentions the prohibition of NTSB accident reports from certain civil litigation, it is only by reference to the statutory prohibition contained in the Independent Safety Board Act of 1974 (49 U.S.G. 1154(b)), which as discussed above, limits only suits or actions for damages. And PG&E cites nothing — not structural context, not legislative history, not even case law — to suggest that the Court should expand the scope of the Safety Board Act beyond its plain language. See United States v. Carter, 421 F.3d 909, 911 (9th Cir.2005) (“It is well settled that, in a statutory construction case, analysis must begin with the language of the statute itself; when the statute is clear, judicial inquiry into its meaning, in all but the most extraordinary circumstance, is finished.”) (internal quotation marks and alterations omitted). PG&E is therefore incorrect that any and all NTSB accident reports must be excluded from criminal trials as a matter of law.

PG&E also argues, however, that the NTSB reports are inadmissible hearsay. PG&E Mot, at 19. The Government does not contest that the NTSB reports are hearsay not subject to any exception. See Gov’t Opp’n at 8 (“The government does not contest that the NTSB reports contain out of court statements.”). Instead, the Government argues that it intends to use the reports for non-hearsay purposes. Id. But the Government offers only one example: it “intends to elicit evidence concerning the NTSB’s urgent safety recommendations that.. .directed PG&E to ‘[ajggressively and diligently search’ for all records related to the [MAOP] of its oldest pipelines.” Id. The Government argues that these urgent recommendations would be offered not for their truth, but to show PG&E’s state of mind for the obstruction count, and in particular, to establish that because PG&E was “[a]ware of the NTSB’s particular interest in this issue, PG&E sought to conceal its policy of exceeding the MAOP up to 10%.. .by saying the document reflecting such policy was an ‘unapproved draft.’ ” Id.

Though PG&E argues the urgent recommendations are irrelevant to the obstruction count because they pertained to MAOP, while the policy at issue in the obstruction count (RMI-06) concerned MOP, this argument is unavailing. PG&E Reply at 8-9. The Court has reviewed the NTSB data request that prompted the disclosure of RMI-06, and that request also concerned MAOP. Yet PG&E responded to that request in part by providing a copy of RMI-06, which PG&E admits concerned collection of MOP data. Id. For PG&E to now argue that the MAOP and MOP measures are completely unrelated is to contradict its own responses to NTSB data requests. The Court therefore agrees with the Government that the NTSB’s “particular interest” in PG&E’s maximum pressure practices, as expressed by the urgent recommendations, is relevant to PG&E’s state of mind in answering NTSB data requests on those practices. Accordingly, PG&E’s second motion in limine is DENIED as to the fact that the NTSB made urgent recommendations regarding PG&E’s MAOP records, as this fact represents relevant and permissible non-hearsay.

The Court cannot, however, make a hearsay determination as to any other statements — contained in NTSB accident reports or elsewhere — for the simple reason that the Government has not provided any other examples. Accordingly, PG&E’s second motion in limine is DENIED WITHOUT PREJUDICE to renewal at trial, if and when the Government attempts to admit other NTSB out-of-court statements.

b. The NTSB’s conclusions are inadmissible.

Hearsay determinations aside, PG&E also argues that “[evidence of the NTSB’s conclusions and opinions, and its recommendations to promote safety, would lead to jury confusion between the very different evidentiary and legal standards presented in an NTSB accident investigation as compared to a criminal enforcement action.” PG&E Mot. at 20. The Court agrees. The probative value of the NTSB’s conclusions, including that “PG&E’s Integrity Management program was both deficient and ineffective, and was a probable cause of the accident,” SI ¶54, is limited because the ultimate issue of the NTSB investigation — the cause of the San Bruno explosion — is not at issue in this case. Meanwhile, admitting the NTSB’s conclusions invites the jury to improperly substitute the NTSB’s findings — under a different standard and for a different purpose— for its own findings about PG&E’s alleged regulatory violations. See Protectus Alpha Nav. Co. Ltd. v. N. Pac. Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir.1985) (“[T]he excluded [NTSB] report was merely another trier of fact’s conclusion as to what transpired on that fatal evening.”). Moreover, there is a substantial risk that the jury would “punish” PG&E on the basis of the NTSB’s conclusion that PG&E’s program was a probable cause of the explosion, which is precisely the sort of improper basis that renders evidence unfairly prejudicial. Old Chief, 519 U.S. at 180, 117 S.Ct. 644 (1997).

Accordingly, PG&E’s second motion in limine is hereby GRANTED as to the conclusions and opinions contained in any NTSB reports.

c. NTSB witnesses may testify only about their firsthand observations.

PG&E also moves to “limit the testimony of NTSB witnesses to their firsthand factual observations.” PG&E Mot. at 18. The Government concedes that it “does not intend to call NTSB witnesses to render expert opinions,” Gov’t Opp’n at 9, and the Court , will hold the Government to this concession.

While addressing NTSB employee testimony, it is worth clarifying that because Part 835 limits testimony in both civil and criminal cases, NTSB employee-witnesses will not be permitted to rely upon NTSB accident reports during their testimony in this case. See 49 C.F.R. § 835.4(b) (“Consistent with section 701(e) of the FA Act and section 304(c) of the Safety Act, a Board employee may not use the Board’s accident report for any purpose during his testimony.”);

Finally, PG&E argues that “[t]he Court should preclude [the Government’s] experts from offering any opinions based on the NTSB Accident Report or from testifying that they have relied on it.” PG&E Mot. at 20. The Government concedes that it “does not intend to.. .elicit other expert testimony that relies on the NTSB reports,” Gov’t Opp’n at 9, and the Court will hold the Government to this concession.

III. PG&E’s Motion in Limine No. 3

PG&E moves to exclude: “All evidence relating to [California Public Utilities Commission (‘CPUC’) ] penalties and fines, including: (a) the $1.6 billion penalty imposed following Investigation 12-01-007 (the ‘San Bruno Oil’), Investigation 11-11-009 (the ‘Class Location Oil’), and Investigation 11-02-016 (the ‘Recordkeeping OH’), including the investigations and proceedings leading to the penalty; and (b) PG&E’s October 2012 discovery of misidentified pipeline features for Line 147 in San Carlos, its report of the inaccuracy to the CPUC, and the CPUC’s December 2013 imposition of a fine for what it concluded was a misleading ‘errata’ filing to correct the record.” PG&E Mot. at ii.

a. The Government concedes that the CPUC penalties should be excluded, and the same reasoning holds for remedial measures.

The Government agrees “not to offer evidence of the amount of the fine, including orders and reports establishing the fine.... ” Gov’t Opp’n at 10. Accordingly, PG&E’s second motion in limine is hereby GRANTED as to category (a).

In opposition to this motion in limine, however, the Government set forth other CPUC Oil evidence, not the subject of the motion, that it intends to offer at trial. Id. First, the Government seeks to include “admissions PG&E made to the CPUC during the Oils, such as in the form of data responses.” Id. As such “statements of a party opponent” are the subject of the Government’s Motion in Li-mine No. 4, the Court discusses their admissibility there. Second, the Government seeks to include the remedial measures the CPUC imposed upon PG&E following the Oils. Id. The Government argues that “[t]hese remedial measures are direct evidence of PG&E’s poor record keeping practices, lack of hydrotesting, lack of verifications of MAOPs on old pipelines,' etc. before the San Bruno explosion, and thus highly probative of PG&E’s violations ■ of the charged regulations.” Id. "

However, PG&E’s argument that the CPUC penalties should be excluded under Rule 403 — hat “the CPUC’s conclusions. . .would unfairly encourage the jury to abdicate its critical role as fact-finder,” PG&E Mot. at 24 — applies with equal force to the CPUC remedial measures. Though any remedial measures aimed at charged Pipeline Safety Act regulations would be highly probative of PG&E’s alleged violations of those regulations, there is a substantial risk that “[t]he jury may assume that if the CPUC, an authoritative government agency, imposed [remedial measures] on PG&E, then PG&E is deserving of punishment....” Id. And this risk substantially outweighs the probative value of the CPUC remedial measures. See Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1176 (3d Cir.1977) (holding that it was within the discretion of the trial judge to exclude an Equal Employment Opportunity Commission (“EEOC”) determination letter because the probative value of the letter “was substantially outweighed by the dangers of unfair prejudice and misleading the jury inherent in an.. .EEOC evaluation of the ultimate factual issue in the case.”).

Accordingly, though CPUC remedial measures were not initially the subject of this motion in limine, the Court now GRANTS PG&E’s motion to exclude evidence of the remedial measures the CPUC imposed upon PG&E following the Oils,

b. The Line 147 evidence is the subject of the Government’s Motion in Limine No. 5.

PG&E’s motion to exclude the Line 147 evidence — category (b) — is the subject of the Government’s Motion in Limine No. 5, and the Court discusses its admissibility there.

IV. PG&E’s Motion in Limine No. 4

PG&E seeks to exclude: “All financial evidence and argument unrelated to the charged conduct, including: (a) PG&E’s profits, either as a whole or in connection with Gas Transmission and Storage (‘GT&S’) services specifically; (b) PG&E’s revenue, either as a whole or in connection with the GT&S services specifically; (c) PG&E’s budget-setting process; (d) employee compensation; and (e) any uncharged conduct whose alleged relevance is based solely on the theory that it evinces PG&E’s profit motive.” PG&E Mot. at ii-iii. The Government submits that evidence of PG&E’s profit motives is probative of PG&E’s willfulness in violating the Pipeline Safety Act regulations. Gov’t Opp’n at 11. PG&E counters that evidence of a defendant’s financial condition and profit incentives is generally inadmissible under Rule 403. PG&E Mot. at 29-30.

PG&E is correct that “[p]roof of [greed], without more, is likely to amount to a great deal of unfair prejudice with little probative value.” United States v. Mitchell, 172 F.3d 1104, 1109 (9th Cir.1999). The Ninth Circuit therefore requires that “something more” accompany evidence of poverty or greed for such evidence to be admissible. United States v. Bensimon, 172 F.3d 1121, 1129 (9th Cir.1999). This issue typically presents when the government seeks to introduce evidence of poverty to prove motive in theft crimes. In that context, the Ninth Circuit has held, for example, that this “something more” can include an “unexplained, abrupt change in circumstances,” id. or the fact that a “defendant is living beyond his means,” Mitchell, 172 F.3d at 1108.

Here, the Government has offered “something more” than just greed. The Government alleges that PG&E’s profit motives drove “cost-cutting” decisions that actually meant “safety-cutting” decisions, including that “PG&E knew that updating all of its records and hydrotesting its old pipelines in highly populated areas would have been expensive [and]... chose to spend money elsewhere.” Gov’t Opp’n at 11. If true, such evidence presents more than “[a] mere interest, unconnected with inclination,” Mitchell, 172 F.3d at 1109; it suggests that PG&E’s inclination to make money actually informed its decision-making in a way that informs its mental stated on the charged regulatory crimes.

Though this may be true in the abstract, it does not mean all evidence regarding PG&E’s financial condition would survive a Rule 403 balancing. For example, the fact that “PG&E reported its income for the second quarter of 2010 as. $333 million,” Gov’t Opp’n at 12, is a presentation of wealth unnecessary to any argument that PG&E’s profit motives drove regulatory violations, and it is therefore inadmissible. But in opposition to this motion, the Government did not provide specific examples of financial evidence it seeks to admit. The Government did not explain how it will prove that “PG&E knew that updating all of its records and hydrotesting its old pipelines.. .would have been expensive” and therefore elected not to do it. Id. at 11. Instead, the Government argues only that it “intends to call ah expert who will testify that PG&E’s practices' focused on financial gains at the expense of safety.” Id. A hearing on whether this witness’s expert testimony meets the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) is set for April 20, 2016. Dkt. No. 435. In the meantime, the Court holds only that evidence that PG&E’s profit motives drove its compliance (or non-compliance) with the charged regulations is not substantially outweighed by the risk of unfair prejudice, as such would be direct evidence of the required mental state for the regulatory counts. This remains true regardless of whether the evidence falls within one of the five categories PG&E identified for exclusion.

Accordingly, PG&E’s fourth motion in limine is hereby DENIED WITHOUT PREJUDICE to renewal at trial, when it becomes clear precisely how the Government intends to prove that PG&E’s alleged regulatory violations were motivated by a desire to maximize profits.

V. PG&E’s Motion in Limine No. 5

PG&E moves to exclude eleven categories of “evidence and argument relating to PG&E’s safety improvements after the San Bruno accident” and “any PG&E statements of remorse and empathy after the San Bruno accident, recognition of areas needing improvement, and descriptions of the improvement measures.” PG&E Mot. at iii.

a. Rule 407 applies but does not bar any of PG&E’s remedial measures.

PG&E argues that it has accepted responsibility for the San Bruno explosion by implementing many broad safety improvements, and that this “important work should not be used against it.” Id. at 31. PG&E relies on Rule 407 to support this argument, which states: “When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove... culpable conduct.” Fed. R. Evid. 407. The Government argues that Rule 407 is a civil rule of evidence with no application in this criminal prosecution. Gov’t Opp’n at 14-16.

Though the Rules of Evidence apply in both “civil cases and proceedings” and “criminal cases and proceedings,” Fed. R. Evid. 1101(b), the Government finds some support for its argument. See, e.g., United States v. Wittig, 425 F.Supp.2d 1196, 1233 (D.Kan.2006), rev’d on other grounds, 472 F.3d 1247 (10th Cir.2007) (“Defendants’ reliance on Rule 407 of the Federal Rules of Evidence is misplaced, for it applies only to civil cases.”); United States v. Gallagher, No. 89-00272-03, 1990 WL 52722, at *1 (E.D.Pa.1990) (“The court concludes that Rule 407 does not apply to criminal cases, and that even if it did, it would not apply to the facts of this case.”).

The Court is aware of no binding authority, however, to definitively address whether Rule 407 applies in criminal cases. Without any such authority, the Court agrees with PG&E that the purpose of Rule 407 — “to encourage tortfeasors to remedy hazardous conditions without fear that subsequent measures will be used as evidence against them,” Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986)— applies with equal force to civil and criminal cases. Though this harm-reduction objective may more often find application in civil cases, “neither harm nor injury are exclusively civil matters.” United States v. DSD Shipping, A.S., No. 15-00102-CG-B, 2015 WL 5722805, at *1 (S.D.Ala. Sept. 29, 2015). And this is certainly a criminal case where harm-reduction can and should be a goal, as indicated by the Pipeline Safety Act itself. 49 U.S.C. § 60102(a)(1); see also DSD Shipping, 2015 WL 5722805, at *2 (“[W]here, as here, subsequent remedial measures are possible in a criminal case, Rule 407 does not state that the case is excluded from its application.”). The Court therefore finds that Rule 407’s bar of subsequent remedial measures can apply to criminal cases and may apply to this one.

Rule 407, however, is not without its limitations. First, the Rule only prohibits evidence of “measures.. .that would have made an earlier injury or harm less likely to occur.” Fed. R. Evid. 407. Rule 407 likewise does not apply to involuntary remedial measures. See In re: Aircrash in Bali, Indonesia, 871 F.2d 812, 816-17 (9th Cir.1989) (“The purpose of Rule 407 is not implicated in cases involving subsequent measures in which the defendant did not voluntarily participate.”). With these principles in mind, the Court now addresses the eleven categories of remedial measures, numbered (a) through (k), that PG&E seeks to exclude, considering also whether each category is admissible under Rules 401 and 403.

As an initial matter, when asked at the April 12, 2016 oral argument to explain the relevance of categories (a), (b), (e), (i), (j), and (k), the Government responded that only one of these categories — category (i) — is relevant-to proving the charged regulatory violations. See Apr. 12, 2016 Tr. (“4/12/16 Tr.”) at 3 (Dkt. No. 436).(“[T]he Court is wondering which of these [six categories] is relevant for the charged regulations. Your Honor, one of them is. And that is the fourth one down. It has the (i) in front of it.”). Because the Government concedes that categories (a), (b), (e), (j), and (k) are irrelevant, these categories are inadmissible under Rule 401, regardless of whether they would be admissible under Rule 407. Accordingly, PG&E’s fifth motion in limine is hereby GRANTED as to these five categories.

Category (c), PG&E “improving its Integrity Management Program,” PG&E Mot. at iii, is too broad for a Rule 407 determination. The Court therefore asked at the April 12, 2016 oral argument which specific measures PG&E seeks to exclude, and received the following;

PG&E.. .implemented a revised program that includes: a revised risk model; a revised consideration of defect and leak data for the life of each pipeline; a revised risk assessment methodology; and an improved self-assessment process. PG&E.. .update[d] the threat identification processes for manufacturing and construction threats, cyclic fatigue, and interactive threats.. .updated eleven of its risk management procedures including its Integrity Management Program (RMP-6) and added four new procedures... revised its risk analysis methodology to ensure assessment methods are selected for each pipeline segment, specifically focusing on design, material, and construction threats... [and] documented these changes to the existing integrity management procedures through a change form process.

Def.’s Suppl. Resp. Regarding Def.’s Motion in Limine No. 5 (“4/12/16 Resp.”) at 1 (Dkt, No. 438). The Government concedes such improvements would have made the San Bruno explosion less likely to occur, Gov’t Opp’n at 16-17, and the Court agrees. The Court does not agree, however, with PG&E’s argument that these measures were voluntary.

“An exception to Rule' 407 is recognized for evidence of remedial action mandated by superior governmental authority.. .because the policy goal of encouraging remediation would not necessarily be furthered by exclusion of such evidence.” O’Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir.1990). Though PG&E argues that it “voluntarily commenced [these] improvements to its Integrity Management Program shortly after the accident,” and only “later coordinated with various regulatory recommendations and directives,” 4/12/16 Resp. at 1, it is evident that the CPUC was heavily involved in requiring such improvements in the days and months following the San Bruno explosion. First, the CPUC passed a resolution within two weeks of the explosion, ordering PG&E to take immediate measures to improve and evaluate the safety of its pipeline system. CPUC Resolution No. L-403, at 3 (Sep. 23, 2010). For example, the CPUC ordered that PG&E immediately “conduct[ ] an integrity assessment of all gas facilities in the impacted area,” “[c]onduct an accelerated leak survey of all transmission lines in PG&E’s service territory,” “[e]valuate records of customer leak-complaint response times and response effectiveness system-wide,” “[p]repare a plan for a complete safety inspection of PG&E’s entire natural gas transmission pipeline system,” and “[r]eview the classification of natural gas transmission lines.” Id. at 3-4. Several months later, the CPUC issued yet another “rule[] for near-term implementation,” which would require pipeline operators to “identify threats along their pipelines and come up with a plan to mitigate the threats, including research and development,” Order Instituting Rulemaking, at 7, Attach. B at 5 (Feb. 25, 2011). Moreover, PG&E concedes that its Pipeline Safety Enhancement Plan was “part of PG&E’s work to meet CPUC directives.” PG&E Reply at 16. It is therefore readily apparent that the improvements to PG&E’s Integrity Management Program identified above were anything but voluntary, and therefore fall outside the scope of Rule 407.

Meanwhile, improvements PG&E made to its Integrity Management Program are relevant and highly probative, as this is the program at issue in Counts 2 and 5-8. For example, the fact that PG&E “update[d] the threat identification processes for manufacturing and construction threats,” 4/12/16 Resp. at 1, is directly related to the counts brought under 49 C.F.R. § 192.917, which requires pipeline operators to “identify and evaluate all potential threats to each covered pipeline segment,” including “[manufacturing and construction defects.” The improvements are therefore also admissible under Rules 401 and 403. Accordingly, PG&E’s fifth motion in limine is hereby DENIED as to category (c).

Category (d), PG&E “hydrotest-ing over 650 miles of pipeline,” PG&E Mot. at iii, falls within the Government’s argument that “post-accident tests.. .rarely qualify as subsequent remedial measures, because they are investigative rather than remedial.” Gov’t Opp’n at 17; see also Fasanaro v. Mooney Aircraft Corp., 687 F.Supp. 482, 487 (N.D.Cal.1988) (“Post-event tests will not, in themselves, result in added safety... .By its terms Rule 407 includes only the actual remedial measures themselves and not the initial steps toward ascertaining whether any remedial measures are called for.”). PG&E did not contest the Government’s argument regarding post-accident testing, so the Court agrees that admission of such evidence is not barred by Rule 407. The probative value of hydrotesting evidence is high because one of the charged IM regulations, 49 C.F.R. § 192.919, requires operators to list “[t]he methods selected to assess the integrity of the [] pipe, including an explanation of why the assessment method was selected to address the identified threats to each covered segment,” and one available method is “[pressure test conducted in accordance with subpart J of this part,” id. § 192.921(a)(2), also known as a hydrotest, SI ¶ 14. The IM regulations also require pipeline operators to identify threats on segments operated in HCAs, id. § 192.917(a); once certain threats are identified, the regulations further require operators to “select an assessment technology. . .with a proven application capable of assessing” those threats, id. § 192.917(e)(4). The Government claims “[t]he evidence will show that the only workable test for Line 132 was hydrotest-ing,” Gov’t Opp’n at 3. The fact that PG&E later began hydrotesting is therefore probative of whether hydrotesting was required by the IM regulations. Meanwhile, PG&E has not provided any reason why the probative value of this evidence is substantially outweighed by a risk of unfair prejudice. Accordingly, PG&E’s fifth motion in limine is hereby DENIED as to category (d).

Category (f), PG&E “replacing over 100 miles of pipeline,” PG&E Mot. at iii, suffers from the same Rule 407 defect as category (c); namely, that PG&E has not demonstrated that the measure was voluntary, even if it would have prevented the San Bruno explosion. Indeed, PG&E conceded that “PG&E’s pipeline replacement. . .w[as] incorporated into the CPUC’s Order Instituting Rulemaking,” 4/12/16 Resp. at 2, which is one of the same orders discussed under category (c). However, this evidence carries little probative value, as it is not directly related to a charged regulation in the same manner as the category (c) evidence. Meanwhile, there is a substantial risk that the evidence would produce an emotional response from the jury, as the jury may conclude that PG&E could have easily prevented the tragic explosion by simply replacing the pipeline sooner. Because the risk of this emotional response substantially outweighs the slim probative value of the evidence, this evidence is inadmissible under Rule 403. Accordingly, PG&E’s fifth motion in limine is hereby GRANTED as to category (f).

Category (g), PG&E “upgrading more than 200 miles of pipeline to accommodate inspection by in-line inspection tools,” PG&E Mot. at iii, likewise falls outside the scope of Rule 407 because PG&E has not demonstrated that the measure was voluntary; another of the CPUC’s “rules for near-term implementation” was the “Retrofitting of transmission lines to allow inline inspections.” Order Instituting Rulemaking, Attach. B at 1. Here, on the other hand, the probative value of this evidence is high because one of the charged regulations, 49 C.F.R. § 192.919, requires operators to list “[t]he methods selected to assess the integrity of the [] pipe, including an explanation of why the assessment method was selected to address the identified threats to each covered segment,” and one available method is “[internal inspection tools,” 49 C.F.R. § 192.921(a)(1). That PG&E later updated to accommodate this method is therefore probative of the Government’s argument that the methods PG&E selected before the San Bruno explosion were insufficient. And PG&E has not provided any reason why the probative value of this evidence is substantially outweighed by a risk of unfair prejudice. Accordingly, PG&E’s fifth motion in limine is hereby DENIED as to category (g).

Category (h), PG&E “scanning and digitizing more than 3.8 million paper documents to meet the 2011 advisory that wherever possible utilities rely on ’traceable, verifiable, and complete’ records,” PG&E Mot. at iii, was involuntary by PG&E’s own admission. See PG&E Reply at 16 (“[E]fforts like the 2011 records review. . .were part of PG&E’s work to meet CPUC directives.... ”). However, while such admission limits the application of Rule 407, it also serves to undercut the Government’s theory of relevance for this evidence, because an involuntary measure, no matter how large the scale, does little to demonstrate PG&E’s state of mind. See Gov’t Opp’n at 18 (“PG&E’s massive effort to fix its recordkeeping problems[ ] is relevant to show PG&E’s knowledge of its recordkeeping deficiencies. A jury may properly conclude that if it was necessary for PG&E to rent the Cow Palace in order to properly review its records.. .then its deficiencies were so widespread that its employees must have known about the problem pre-San Bruno.”). The probative value of this evidence is therefore relatively low. Meanwhile, there is a substantial risk that the jury would confuse the portion of records review prompted by the CPUC directive (and therefore unrelated to the charged conduct) with the portion aimed at compliance with Part 192 (if any). Rule 403 therefore applies to bar admission of this evidence. Accordingly, PG&E’s fifth motion in limine is hereby GRANTED as to category (h).

Category (i), PG&E “validating the [MAOP] of pipelines through hydro-testing or records verification,” PG&E Mot. at iii, is another for which PG&E concedes the CPUC was the driving force. See id. at 32 (“Another new requirement arose in June 2011, when the CPUC... disallowed gas pipeline operators from establishing pipeline MAOPs based solely on historical operating pressure.”). The probative value of this evidence is high for the same reasons as category (d); namely, PG&E’s pressure testing practices are directly at issue in this case. And PG&E has not provided any reason why the probative value of this evidence is substantially outr weighed by a risk of unfair prejudice. Accordingly, PG&E’s fifth motion in, limine is hereby DENIED as to category (i).

b. PG&E’s statements of remorse and empathy are excluded.

PG&E argues that its statements of remorse and empathy following the San Bruno explosion should be excluded because they are irrelevant and “the jury could confuse PG&E’s public expressions of remorse for the accident as admissions of culpability for the regulatory violations charged.” Id. at 36.

The Government did not oppose this argument. The Court is therefore left without any explanation of how the probative value of PG&E’s public apologies stacks against the unfair prejudice that PG&E has identified. Accordingly, the Court hereby GRANTS as unopposed PG&E’s motion to exclude “any PG&E statements of remorse and empathy after the San Bruno accident, recognition of areas needing improvement, and descriptions of the improvement measures.” Id. at iii.

VI. PG&E’s Motion in Limine No. 6

PG&E moves to exclude: “Certain recordkeeping evidence and argument, including: (a) records (or lack thereof) of any repairs made prior to April 17, 2007, for which the government cannot adduce evidence of a complete record that existed after April 17, 2007; and (b) records (or lack thereof) of any pressure tests conducted prior to July 29, 2007, for which the government cannot adduce evidence of a complete record that existed after July 29, 2007.” Id.

PG&E argues that “there is a substantial risk that this evidence would mislead the jury into believing that simply not having a record during the limitation^ period is itself a federal crime,” id. at 38, while the Government argues that this Court previously “ruled that the government need only prove PG&E failed to create and retain pressure test records in the limitation period,” Gov’t Opp’n at 20. These arguments indicate a mutual misunderstanding of this Court’s prior Order Denying Defendant’s Motion to Dismiss Counts 4, 5 and 24-28 as Barred by the Statute of Limitations (“Limitations Order”). Dkt. No. 215. In the Limitations Order,. the Court had occasion to consider but explicitly did not decide whether Part 192’s recordkeeping provisions create continuing offenses. SeeLimitations Order at 12 (“The Court therefore need not address whether the alleged recordkeeping violations constitute continuing offenses, as no exception to the statute of limitations is required to address PG&E’s arguments that the challenged counts are untimely.”). Now that evidentiary considerations require clarity, however, the Court finds occasion to decide this issue.

a. Section 192’s recordkeeping provisions create continuing offenses.

The doctrine of continuing offenses operates as an exception to the general rule that the statute of limitations begins to . run once a crime is complete. Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). The doctrine effectively extends the statute of limitations in cases where the “offense is one which is.not complete upon the first act, but instead continues to be perpetrated over time.” United States v. De La Mata, 266 F.3d 1275, 1288 (11th Cir.2001). Should a court find that a statute creates a continuing offense, then “the statute of limitations does not begin to run when all elements of the crime are first satisfied, but rather when the ongoing commission of the crime comes to an end.” United States v. Tavarez-Levario, 788 F.3d 433, 437 (5th Cir.2015).

In Toussie, -however, the Supreme Court made clear that the doctrine “should be applied in only [two] limited circumstances ... [when] the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” 397 U.S. at 115, 90 S.Ct. 858 (emphasis addéd). With respect to the nature of a crime, “[t]he hallmark of the continuing offense is that it perdures beyond the initial illegal act, and that each day brings a renewed threat of the evil Congress sought to prevent even after the elements necessary to establish the crime have occurred.” United States v. Yashar, 166 F.3d 873, 875 (7th Cir.1999) (citation and internal quotation marks omitted).

In determining whether a statute creates a continuing offense, courts are typically limited to the language of the statute itself: “[S]ince questions of limitations are fundamentally matters of legislative not administrative decision, we think [a] regulation should not be relied upon.. .to stretch a...statute of limitations ... unless the statute itself, apart from the regulation, justifies that conclusion.” Toussie, 397 U.S. at 121, 90 S.Ct. 858. The Pipeline Safety Act presents an unusual case, however, because Section 60123 defines criminal conduct only by reference to underlying regulations:

A person knowingly and willfully violating ... a regulation prescribed... under this chapter shall be fined under title 18, imprisoned for not more than 5 years, or both.

49 U.S.C. § 60123(a). This case is therefore unlike the seminal analysis in Toussie, because there the statute contained the elements of the criminal offense. Here, there exists no crime without the regulations.

When asked at the September 21, 2016 motion hearing whether any eourt had considered the continuing offense doctrine in circumstances like this, PG&E cited (and subsequently submitting briefing on) United States v. Del Percio, 870 F.2d 1090 (6th Cir.1989). Def.’s Suppl. Brief (Dkt. No. 171). There, the Sixth Circuit considered whether the violation of regulations promulgated under the Atomic Energy Act constituted continuing offenses. 870 F.2d at 1094-98. Relying on Toussie, the Court looked first to the explicit language of the criminal statute alone, because the “search for explicit continuing offense language is limited to the statutes under which the defendants are charged.” Id. at 1095. The court turned next to the nature of the charged offenses, and in so doing, to the text of the regulations: “Given the sparse language of the statutory provisions under which the defendants are charged... [the] regulations provide the substantive bases for the charged offenses and define the ‘nature’ of those offenses.” Id. at 1097. The court found no continuing offense, as neither the explicit language of the statute nor the nature of the conduct proscribed by the regulations dictated otherwise.

With Del Percio as a guide, the Court now applies the principles of Tous-sie to the Pipeline Safety Act. First, it is beyond dispute that Section 60123 contains no explicit continuing offense language, as the statute only broadly prohibits violations of Pipeline Safety Act regulations, including Part 192. 49 U.S.C. § 60123(a). Second, as in Del Percio, the “sparse language” of Section 60123 requires that the Court look to the regulations c