[Federal Register: March 3, 2005 (Volume 70, Number 41)]
[Rules and Regulations]
[Page 10332-10336]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr05-6]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 192 and 195
[Docket No. RSPA-03-15734; Amdt. 192-100, 195-84]
RIN 2137-AD95
Pipeline Safety: Operator Qualifications; Statutory Changes
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Direct final rule.
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SUMMARY: The Research and Special Programs Administration (RSPA) Office
of Pipeline Safety's (OPS) regulations require operators of gas and
hazardous liquid pipelines to conduct programs to qualify individuals
who perform certain safety-related tasks on pipelines. Congress
addressed these programs through an amendment to the Federal pipeline
safety law (49 U.S.C. Chap. 601). In accordance with the mandates in
that amendment, this Direct Final Rule codifies the new program
requirements concerning personnel training, notice of program changes,
government review and verification of programs, and use of on-the-job
performance as a qualification method.
DATES: This Direct Final Rule goes into effect July 1, 2005. If RSPA/
OPS does not receive any adverse comment \1\ or notice of intent to
file an adverse comment by May 2, 2005, it will publish a confirmation
document within 15 days after the close of the comment period. The
confirmation document will announce that this Direct Final Rule will go
into effect on the date stated above or at least 30 days after the
document is published, whichever is later. If RSPA/OPS receives an
adverse comment, it will publish a timely notice to confirm that fact
and withdraw this Direct Final Rule in whole or in part. RSPA/OPS may
then incorporate changes based on the adverse comment
[[Page 10333]]
into a subsequent Direct Final Rule or may publish a Notice of Proposed
Rulemaking.
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\1\ An adverse comment is one which explains why the rule would
be inappropriate, including a challenge to the rule's underlying
premise or approach, or would be ineffective or unacceptable without
a change. Comments that are frivolous or insubstantial will not be
considered adverse under this procedure. A comment recommending a
rule change in addition to the rule will not be considered an
adverse comment, unless the commenter states why the rule would be
ineffective without the additional change. (49 CFR 190.339(c)).
ADDRESSES: You may submit written comments by mailing or delivering an
original and two copies to the Dockets Facility, U.S. Department of
Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC
20590-0001. The Dockets Facility is open from 10 a.m. to 5 p.m., Monday
through Friday, except on Federal holidays when the facility is closed.
Alternatively, you may submit written comments to the docket
electronically at the following Web address: http://dms.dot.gov. See
the SUPPLEMENTARY INFORMATION section for additional filing
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information.
FOR FURTHER INFORMATION CONTACT: Stanley Kastanas by phone at (202)
366-3844; or by e-mail at stanley.kastanas@rspa.dot.gov.
SUPPLEMENTARY INFORMATION:
Filing Information, Electronic Access, and General Program Information
All written comments should identify the docket and amendment
numbers stated in the heading of this document. Anyone who wants
confirmation of mailed comments must include a self-addressed stamped
postcard. To file written comments electronically, after logging on to
http://dms.dot.gov, click on ``Comment/Submissions.'' You can also read comments and other material in the docket at http://dms.dot.gov.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
Current Program Regulations
RSPA/OPS's pipeline safety regulations require operators of gas and
hazardous liquid pipelines to conduct programs for qualification of
pipeline personnel (49 CFR part 192, subpart N, and part 195, subpart
G). The purpose of the qualification programs is to ensure that
individuals performing certain safety-related tasks on pipelines,
called covered tasks,\2\ are qualified to perform those tasks.
Operators must evaluate the individual's ability to perform the covered
task and to respond to abnormal conditions (Sec. Sec. 192.805(b) and
195.505(b)). After initial qualification, operators must reevaluate the
individual's ability at appropriate intervals (Sec. Sec. 192.805(g)
and 195.505(g)). Operators may use any suitable form of evaluation,
including written or oral examination, review of work performance
history, and observation of on-the-job performance, on-the-job
training, or simulations (Sec. Sec. 192.803 and 195.503). However,
review of work performance history may not be the sole method of
evaluation (Sec. Sec. 192.809(d) and 195.509(d)). To enable on-the-job
training, the regulations allow individuals who lack requisite
qualifications to perform covered tasks while under the direction and
observation of a qualified individual (Sec. Sec. 192.805(c) and
195.505(c)).
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\2\ Covered task means an activity, identified by the operator,
that: (1) Is performed on a pipeline facility; (2) is an operations
or maintenance task; (3) is performed as a requirement of part 192
or 195; and (4) affects the operation or integrity of the pipeline.
(49 CFR 192.801(b) and 195.501(b)).
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In addition to the regulations, RSPA/OPS has developed protocol
questions and guidance criteria to assist RSPA/OPS and state agency
inspectors in evaluating operators' programs and verifying compliance
with the regulations. This material is available at RSPA/OPS's Web site
dedicated to personnel qualification topics (http://primis.rspa.dot.gov/oq/index.htm
).
Congressional Action and Related Changes to Program Regulations
In Section 13 of the Pipeline Safety Improvement Act of 2002 (Pub.
L. 107-355, 116 Stat. 2985), Congress addressed the content of
operators' personnel qualification programs by adding a new section (49
U.S.C. 60131) to the Federal pipeline safety law (49 U.S.C. Chap. 601)
. Many provisions of 49 U.S.C 60131 dictate either the content of
operators' programs or DOT regulation of that content. As explained
below, RSPA/OPS's existing regulations, including supplementary
protocols and guidance material, are consistent with many of these
content provisions, but in a few cases new regulations are needed to
codify the remaining Congressional mandates.
This Direct Final Rule codifies the mandates in 49 U.S.C.
60131(e)(6) in which Congress directly ordered operators to adopt
programs that meet the requirements of 49 U.S.C. 60131(b)(2)(B) and (d)
(see below) no later than December 17, 2004. In the November 26, 2004,
issue of the Federal Register, RSPA/OPS published an Advisory Bulletin
to inform operators about this statutory obligation (69 FR 69028). This
Direct Final Rule also codifies the review and verification
requirements in 49 U.S.C. 60131(b)(2)(C).
Qualification Programs. In 49 U.S.C. 60131(a), Congress directed
DOT to require each operator to develop and adopt a qualification
program to ensure that individuals performing covered tasks are
qualified to do so. In 49 U.S.C. 60131(b)(1), Congress directed DOT to
establish standards and criteria for these programs. RSPA/OPS believes
its regulations in 49 CFR part 192, subpart N, and part 195, subpart G
are consistent with these broad directives.
Evaluation Methods. Under 49 U.S.C. 60131(b)(2)(A), DOT's standards
and criteria must include methods for evaluating the acceptability of
an individual's qualifications. Also, 49 U.S.C. 60131(b)(2)(B),
provides that the standards and criteria must require operators to
develop and implement written plans and procedures for using the
methods to qualify individuals to an acceptable level. RSPA/OPS
believes its regulations satisfy these specific directives. Sections
192.803 and 195.503 specify acceptable methods for evaluating an
individual's qualifications. Also, under Sec. Sec. 192.805 and
195.505, operators must have and follow written programs that describe
use of the methods to conduct evaluations.
Program Review and Verification. Under 49 U.S.C. 60131(b)(2)(C),
Congress directed that DOT's standards and criteria must include a
requirement that operators' plans and procedures for using evaluation
methods must be reviewed and verified under 49 U.S.C. 60131(e). Among
other things, 49 U.S.C. 60131(e) directs DOT to review each operator's
qualification program and verify its compliance with the required
standards and criteria and that it includes the program elements
described in 49 U.S.C. 60131(d), which are discussed below. As
authorized by the Federal pipeline safety law, RSPA/OPS and state
pipeline safety inspectors already review operators' qualification
programs to verify compliance with the regulations in 49 CFR part 192,
subpart N, and part 195, subpart G. Also, future reviews will cover any
program changes operators have to make because of 49 U.S.C. 60131 and
this Direct Final Rule. However, the regulations do not state that
operators' programs are subject to such reviews. Therefore, in response
to the specific directive of 49 U.S.C. 60131(b)(2)(C), by this Direct
Final Rule, RSPA/OPS is amending Sec. Sec. 192.809(a) and 195.509(a)
to require that operators make their written qualification programs
available for review by RSPA/OPS or a state pipeline safety agency.
[[Page 10334]]
Program Compliance Deadline. In 49 U.S.C. 60131(c), Congress
directed DOT to require each pipeline operator to develop and adopt,
not later than December 17, 2004, a qualification program that complies
with the standards and criteria described in 49 U.S.C. 60131(b). As
explained above, RSPA/OPS's regulations already require operators to
have qualification programs that comply with the standards and criteria
described in 49 U.S.C. 60131(b) (1) and (b)(2)(A) and (B). In addition,
under the Federal pipeline safety law, operators written qualification
programs are subject to review as required by 49 U.S.C. 60131(b)
(2)(C). Therefore, RSPA/OPS considers the directive in 49 U.S.C.
60131(c) to have been satisfied.
Observation of On-the-Job Performance. In 49 U.S.C. 60131(d)(1),
Congress ratified the methods of evaluation included in Sec. Sec.
192.803 and 195.503. However, Congress declared that an operator's
method of evaluation ``may not be limited to observation of on-the-job
performance, except with respect to tasks for which [DOT] has
determined that such observation is the best method of examining or
testing qualifications.'' (As discussed above, Congress directly
ordered operators to implement this restriction no later than December
17, 2004.) The current regulations in 49 CFR part 192, subpart N, and
part 195, subpart G do not preclude operators from using observation of
on-the-job performance as the sole method of evaluation, and RSPA/OPS
has not determined that such observation is the best method of
evaluation for any particular covered task. Therefore, by this Direct
Final Rule, RSPA/OPS is establishing Sec. Sec. 192.809(e) and
195.509(e) to restrict operators from using observation of on-the-job
performance as the sole method of evaluation.
Anyone who wants RSPA/OPS to determine that observation of on-the-
job performance is the best method of evaluation for a particular task
may file a petition for rulemaking under the rulemaking procedures in
49 CFR 190.331. In addition, for pipeline facilities under the direct
regulatory authority of RSPA, operators may petition RSPA/OPS for
waiver of Sec. 192.809(e) or Sec. 195.509(e) as provided by 49 U.S.C.
60118(c). For intrastate facilities under the safety regulatory
authority of a certified state agency, waiver petitions may be filed
with the state agency as provided by 49 U.S.C. 60118(d). However, to
avoid making determinations case-by-case, RSPA/OPS is interested in
developing criteria that would identify those covered tasks for which
observation of on-the-job performance is the best method of evaluation.
RSPA/OPS will also pursue this idea through its ongoing collaboration
with the American Society of Mechanical Engineers to create a consensus
standard on qualification of operator personnel.
Also in 49 U.S.C. 60131(d)(1), Congress directed DOT to ``ensure
that the results of any such observations are documented in writing.''
RSPA/OPS believes the recordkeeping requirements of Sec. Sec. 192.807
and 195.507 are sufficiently responsive to this directive. Under these
requirements, operators have to keep records that identify qualified
individuals, the tasks they are qualified to perform, and the
qualification method.
Qualification Deadline. In 49 U.S.C. 60131(d)(2), Congress declared
that operators must complete the qualification of all individuals
performing covered tasks not later than 18 months after the date of
adoption of the qualification program. RSPA/OPS believes no changes are
needed to the regulations in 49 CFR part 192, subpart N, and part 195,
subpart G to meet this congressional order. Under Sec. Sec. 192.809
and 195.509, operators had to have a written qualification program by
April 27, 2001, and complete the qualification of individuals
performing covered tasks by October 28, 2002.
Requalification. Under 49 U.S.C. 60131(d)(3), operators'
qualification programs must have a periodic requalification component
that provides for evaluation of individuals by an acceptable method. As
noted above, Sec. Sec. 192.805 and 195.505 already require that
operators reevaluate the abilities of qualified individuals at
appropriate intervals. RSPA/OPS believes these requirements are
sufficient to implement 49 U.S.C. 60131(d)(3).
Training. Under 49 U.S.C. 60131(d)(4), Congress declared that
operators qualification programs must: provide training, as
appropriate, to ensure that individuals performing covered tasks have
the necessary knowledge and skills to perform the tasks in a manner
that ensures the safe operation of pipeline facilities.
(As discussed above, Congress ordered operators to implement this
training requirement no later than December 17, 2004.) Although
observation of on-the-job training or training by simulation are
allowable methods of evaluations, RSPA/OPS's regulations do not
specifically require that operators' qualification programs provide
this or any other training for individuals. Therefore, by this Direct
Final Rule, RSPA/OPS is adding new Sec. Sec. 192.805(h) and 195.505(h)
to require that operators' have qualification programs that provide
training consistent with Congress' order. RSPA/OPS believes that on-
the-job training or training by simulation that many programs already
provide are appropriate ways to meet the order and the new regulations.
In addition, RSPA/OPS does not intend this new program requirement to
mean that operators must pay for training provided by their programs.
Notice of Significant Program Modification. Section 60131(e)
concerns review by DOT of each operator's qualification program to
verify that it meets the required standards and criteria and program
elements. Under Sec. 60131(e)(4), if the operator of a pipeline
facility significantly modifies a program that has been verified, the
operator must notify DOT of the modifications, and DOT has to review
and verify the modifications. At present, RSPA/OPS's regulations do not
require that operators notify RSPA/OPS or a participating state
pipeline safety agency of a significant program modification.
Therefore, by this Direct Final Rule, RSPA/OPS is establishing
Sec. Sec. 192.805(i) and 195.505(i) to require such notification.
Regulatory Analyses and Notices
Executive Order 12866 and DOT Policies and Procedures. RSPA/OPS
does not consider this Direct Final Rule to be a significant regulatory
action under Section 3(f) of Executive Order 12866 (58 FR 51735; Oct.
4, 1993). Therefore, the Office of Management and Budget (OMB) has not
received a copy of this rulemaking to review. RSPA/OPS also does not
consider this rulemaking to be significant under DOT regulatory
policies and procedures (44 FR 11034: February 26, 1979).
RSPA/OPS prepared a Regulatory Evaluation of the costs and benefits
of the regulations established by this Direct Final Rule, and a copy is
in the docket. The evaluation concludes that no costs or benefits are
attributable to the regulations.
Regulatory Flexibility Act. Under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), RSPA/OPS must consider whether its rulemakings
have a significant economic impact on a substantial number of small
entities. The regulations established by this Direct Final Rule are
consistent with current regulatory requirements or direct congressional
orders to operators. Therefore, based on the facts available about the
anticipated impacts of this rulemaking, I certify that this rulemaking
will not have a significant impact on a substantial number of small
[[Page 10335]]
entities. If you have any information that this conclusion about the
impact on small entities is not correct, please provide that
information to the public docket as described above.
Executive Order 13175. This Direct Final Rule has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13175, ``Consultation and Coordination with Indian Tribal
Governments.'' Because the Direct Final Rule does not significantly or
uniquely affect the communities of the Indian tribal governments and
would not impose substantial direct compliance costs, the funding and
consultation requirements of Executive Order 13175 do not apply.
Paperwork Reduction Act. This Direct Final Rule contains two
information collection requirements in response to a congressional
directive. The first requirement is that operator's written
qualification programs provide training, as appropriate, to ensure that
individuals performing covered tasks have the necessary knowledge and
skills to perform the tasks in a manner that ensures the safe operation
of pipeline facilities (see Sec. Sec. 192.805(h) and 195.505(h)). This
requirement is consistent with a mandate directed to operators by
Congress that operators have the required training in their programs by
December 17, 2004 (49 U.S.C. 60131(d)(4) and (e)(6)). The second
requirement is that operators must notify the Administrator of RSPA or
a participating state agency if the operator significantly modifies a
qualification program after the Administrator or state agency has
verified that it meets applicable requirements (see Sec. Sec.
192.805(i) and 195.505(i)). This requirement also is consistent with a
mandate directed to operators by Congress that operators give the
prescribed notices (49 U.S.C. 60131(e)(4)).
Regarding the training requirement, we believe that even prior to
the congressional mandate operators' programs provided the requisite
training in response to RSPA/OPS's protocols and guidance material. As
to the notification requirement, in our experience operators do not
routinely make significant modifications to their qualification
programs. And if a modification does occur that now requires
notification because of the statutory mandate, notice may be provided
simply and quickly by e-mail or telephone. So no net increase in
paperwork burden is likely from the training and notification
requirements. Because no net increase in paperwork burden is likely
from this Direct Final Rule, we believe that submitting an analysis of
the burdens to OMB under the Paperwork Reduction Act is unnecessary.
Unfunded Mandates Reform Act of 1995. This Direct Final Rule does
not impose unfunded mandates under the Unfunded Mandates Reform Act of
1995. It would not result in costs of $100 million or more to either
State, local, or tribal governments, in the aggregate, or to the
private sector, and would be the least burdensome alternative that
achieves the objective of the rule.
National Environmental Policy Act. For purposes of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), RSPA/OPS prepared an
Environmental Assessment of its pipeline personnel qualification
regulations when they were first issued (64 FR 46853; Aug. 27, 1999). A
copy of that Environmental Assessment is in Docket No. RSPA-98-3783.
The assessment determined that the regulations would not have a
detrimental impact on the environment because they were expected to
reduce the number of incidents related to human error, with a resulting
reduction in the potential for environmental damage. The assessment
also determined that the regulations would not significantly affect the
quality of the human environment. The present Direct Final Rule merely
advances the purposes of the original regulations by adding new program
requirements concerning instruction and evaluation of operator
personnel and information collection. Like the original regulations,
these matters should have no detrimental impact on the environment.
Therefore, RSPA/OPS does not believe that any further assessment of
environmental impact is needed. If you disagree with this conclusion,
please submit your comments to the docket as described above.
Executive Order 13132. This Direct Final Rule has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132 (``Federalism''). The Direct Final Rule does not have any
provision that (1) has 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; (2) imposes substantial direct compliance costs on State
and local governments; or (3) preempts State law. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
Executive Order 13211. This rulemaking is not a ``Significant
energy action'' under Executive Order 13211. It is not a significant
regulatory action under Executive Order 12866 and is not likely to have
a significant adverse effect on the supply, distribution, or use of
energy. Further, this rulemaking has not been designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action.
List of Subjects
49 CFR Part 192
Natural gas, Pipeline safety, Reporting and recordkeeping
requirements.
49 CFR Part 195
Ammonia, Carbon dioxide, Petroleum, Pipeline safety, Reporting and
recordkeeping requirements.
0
Accordingly, RSPA/OPS amends 49 CFR parts 192 and 195 as follows:
PART 192--[AMENDED]
0
1. The authority citation for part 192 continues to read as follows:
Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110,
60113, and 60118; and 49 CFR 1.53.
0
2. In Sec. 192.805,
0
a. Republish the introductory text,
0
b. Remove ``and'' from the end of paragraph (f),
0
c. Remove the period from the end of paragraph (g) and add a semicolon
in its place, and
0
d. Add new paragraphs (h) and (i) to read as follows:
Sec. 192.805 Qualification program.
Each operator shall have and follow a written qualification
program. The program shall include provisions to:
* * * * *
(h) After December 16, 2004, provide training, as appropriate, to
ensure that individuals performing covered tasks have the necessary
knowledge and skills to perform the tasks in a manner that ensures the
safe operation of pipeline facilities; and
(i) After December 16, 2004, notify the Administrator or a state
agency participating under 49 U.S.C. Chapter 601 if the operator
significantly modifies the program after the Administrator or state
agency has verified that it complies with this section.
0
3. In Sec. 192.809, revise paragraph (a) and add a new paragraph (e)
to read as follows:
Sec. 192.809 General.
(a) Operators must have a written qualification program by April
27, 2001. The program must be available for review by the Administrator
or by a state agency participating under 49
[[Page 10336]]
U.S.C. Chapter 601 if the program is under the authority of that state
agency.
* * * * *
(e) After December 16, 2004, observation of on-the-job performance
may not be used as the sole method of evaluation.
PART 195--[AMENDED]
0
1. The authority citation for part 195 continues to read as follows:
Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60118;
and 49 CFR 1.53.
0
2. In Sec. 195.505,
0
a. Republish the introductory text,
0
b. Remove ``and'' from the end of paragraph (f),
0
c. Remove the period from the end of paragraph (g) and add a semicolon
in its place, and
0
d. Add new paragraphs (h) and (i) to read as follows:
Sec. 195.505 Qualification program.
Each operator shall have and follow a written qualification
program. The program shall include provisions to:
* * * * *
(h) After December 16, 2004, provide training, as appropriate, to
ensure that individuals performing covered tasks have the necessary
knowledge and skills to perform the tasks in a manner that ensures the
safe operation of pipeline facilities; and
(i) After December 16, 2004, notify the Administrator or a state
agency participating under 49 U.S.C. Chapter 601 if the operator
significantly modifies the program after the Administrator or state
agency has verified that it complies with this section.
0
3. In Sec. 195.509, revise paragraph (a) and add a new paragraph (e)
to read as follows:
Sec. 195.509 General.
(a) Operators must have a written qualification program by April
27, 2001. The program must be available for review by the Administrator
or by a state agency participating under 49 U.S.C. Chapter 601 if the
program is under the authority of that state agency.
* * * * *
(e) After December 16, 2004, observation of on-the-job performance
may not be used as the sole method of evaluation.
Issued in Washington, DC, on February 25, 2005.
Elaine E. Joost,
Acting Deputy Administrator.
[FR Doc. 05-4122 Filed 3-2-05; 8:45 am]
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