05-11864. Pipeline Safety: Operator Qualifications; Statutory Changes

AGENCY:

Office of Pipeline Safety (OPS), Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

ACTION:

Direct final rule; confirmation of effective date.

SUMMARY:

This document confirms the effective date of the direct final rule published in the Federal Register on March 3, 2005. The direct final rule amended regulations that require operators of gas and hazardous liquid pipelines to conduct programs to evaluate the qualifications of individuals who perform certain safety-related tasks on pipelines.

DATES:

The direct final rule published March 3, 2005, goes into effect July 15, 2005.

FOR FURTHER INFORMATION CONTACT:

L.M. Furrow by phone at 202-366-4559, by fax at 202-366-4566, by mail at U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On March 3, 2005, PHMSA published a Direct Final Rule (DFR) titled “Pipeline Safety: Operator Qualifications; Statutory Changes” (70 FR 10332). The DFR amended the personnel qualification regulations in 49 CFR part 192, subpart N, and 49 CFR part 195, subpart G, which require operators of gas and hazardous liquid pipelines to conduct programs for evaluating the qualifications of pipeline personnel. The amendments conformed the regulations to program changes contained in section 13 of the Pipeline Safety Improvement Act of 2002 (49 U.S.C. 60131). These statutory changes concern personnel training, notice of significant program changes, governmental review and verification of operators' programs, and using observation of on-the-job performance as the sole method of evaluating qualifications.

In the DFR, PHMSA stated that if it did not receive an adverse comment, as defined in 49 CFR 190.339(c), or notice of intent to file an adverse comment by May 2, 2005, it would publish a confirmation document to announce that the DFR would go into effect on July 1, 2005, or at least 30 days after the confirmation document is published, whichever is later.

PHMSA received two comments on the DFR. One commenter made general remarks about PHMSA's pipeline safety program, and the other commenter, DJL Services, had more specific comments. The comments are summarized below.

Comment: One commenter said that because severe pipeline explosions are causing deaths and injuries, program upgrades are needed, including higher penalties and more inspection visits for negligent pipeline operations.

Response: We are upgrading various aspects of our pipeline safety program. One important upgrade involves regulation of personnel qualifications and work with the American Society of Mechanical Engineers to create a national consensus standard on qualification of operator personnel. In addition, maximum penalties for violations of safety standards were recently increased, and we continue to focus inspections on operators that fail to give proper attention to compliance. Nevertheless, because this comment addresses pipeline safety in general rather than a new rule established by the DFR, we do not consider the comment to be an adverse comment.

Comment: DJL Services took issue with the preamble statement that “observation of * * * training by simulation” is an allowable evaluation method (see 70 FR 10334). The commenter argued that in 49 U.S.C. 60131(d)(1) Congress referred to “simulations” as a stand-alone method of examining or testing, and that calling simulations “training by simulation” will result in an inappropriate application of the law.

Response: Both the statute (49 U.S.C. 60131(d)(1)) and existing regulations (49 CFR 192.803 and 195.503) cite “observation during * * * simulations” as an acceptable method of evaluating personnel qualifications. The “simulations” to be observed involve personnel experiencing mock pipeline conditions, usually in the form of computer programs or planned events. However, operators largely use simulations to train personnel in certain skills or responses. To help make the point that operators may use simulations for training required by new §§ 192.805(h) and 195.505(h), we referred to “simulations” as “training by simulation.” In doing so, PHMSA did not intend to imply that if operators use simulations to evaluate qualifications, they must use training simulations. Nevertheless, since this comment concerns a statement we made about existing rules rather than a new rule established by the DFR, PHMSA does not consider the comment to be an adverse comment.

Comment: With respect to the new training rules (§§ 192.805(h) and 195.505(h)), DJL Services questioned the preamble statement that “OPS does not intend this new program requirement to mean operators must pay for training provided by their programs.” The commenter said this statement seemed at odds with the requirement that operators' qualification programs must provide training, and said it would cause confusion and make the rules ineffective.

Response: PHMSA made the statement in anticipation of future questions about whether operators may charge their personnel for any training they receive. Our safety regulatory authority does not include authority to decide who should ultimately stand the expense of compliance with safety standards operators must meet. Other agencies, such as the Federal Energy Regulatory Commission and State pipeline regulatory authorities, deal with financial issues through rate regulation. The expense of services operators provide their personnel may also be the subject of agreements negotiated with employees or contractors. Although the new training rules obligate operators to provide for training in their qualification programs, the rules do not obligate operators to stand the expense of training personnel may receive. Because this comment relates to a financial matter outside the purview of our regulatory authority and does not affect operators' compliance obligations, PHMSA does not consider the comment to be an adverse comment.

Comment: DJL Services also commented on the new rules that require operators to notify PHMSA or a State pipeline safety authority of significant changes to qualification programs that have been verified to be in compliance (§§ 192.805(i) and 195.505(i)). The commenter pointed out that PHMSA typically does not inform operators about the results of program audits unless the program needs to be revised. This lack of positive feedback, DJL Services said, would make the notification requirements ineffective.

Response: As stated in the DFR, PHMSA and State pipeline safety authorities periodically review operators' programs to verify that they comply with applicable requirements. After completing a review, the operator is informed of any probable violation or any revision its program needs. Positive feedback is not required by the statute or regulations, and PHMSA does not think it is needed for the new notification rules to be effective. The new rules merely provide PHMSA and State authorities an opportunity to review significant program modifications in advance of the next routine review. Regardless of the results of the last review, PHMSA and State authorities still need notices of significant program changes to decide whether to review them ahead of the next routine review. So to comply with §§ 192.805(i) and 195.505(i), operators must notify PHMSA or State authorities of each significant modification made after the initial program review—which for most programs has already occurred. Because this comment does not suggest that the rules themselves should be changed to be effective, we do not consider the comment to be an adverse comment.

Comment: In another comment on the notification rules (§§ 192.805(i) and 195.505(i)), DJL Services questioned the time within which operators must notify PHMSA or a State authority after making a significant program modification. DJL Services suggested that adding a 60-day time limit to the rules would make them more effective.

Response: We intended the notification rules to parallel requirements Congress had previously imposed on operators. (See 49 U.S.C. 60131(e)(4)). Since those requirements do not set a time limit on notifications, neither do the notification rules. However, in the absence of a specific time limit, a reasonable time for compliance is implied. At this stage of experience, PHMSA thinks it is premature to tell whether a more specific time limit is needed. PHMSA has not adopted DJL Services's suggestion to add a 60-day time limit to the rules. Because the comment did not explain that the rules would be ineffective or unacceptable without a more specific time limit, PHMSA does not consider the comment to be an adverse comment.

Comment: The last comment DJL Services made about the notification rules was that “significant” should be defined to add clarity to the rules.

Response: Sections 192.805(i) and 195.505(i) use the term “significantly modifies” because the parallel statutory requirement uses that term. (See 49 U.S.C. 60131(e)(4)). PHMSA thinks that within the context of the rules, “significant” has the usual meaning of extensive or important and needs no special definition. The term provides the leeway needed to avoid notices of minor changes but calls attention to changes worth governmental review. PHMSA does not consider this comment to be an adverse comment because the comment does not explain that the rules would be ineffective or unacceptable without a definition of significant.

Comment: DJL Services said §§ 192.809(e) and 195.509(e), which provide that observation of on-the-job performance may not be the sole method of evaluating an individual's qualifications, were inappropriate because they restrict one of the more valid methods of measuring skills. The commenter also argued the rules imply that sole use of a written or oral exam is acceptable even if observation of an individual's performance is the best method of evaluation.

Response: The rules in §§ 192.809(e) and 195.509(e) parallel the statutory requirement in 49 U.S.C. 60131(d)(1), which restricts the use of on-the-job performance as a sole evaluation method. In effect, the rules do nothing more than minimize confusion by keeping the personnel qualification regulations in step with the statutory requirement. PHMSA has no discretion to change the statutory requirement, even if PHMSA considered it inappropriate. Also, operators are required to “ensure through evaluation that individuals performing covered tasks are qualified” (§§ 192.805(b) and 195.505(b)). The acceptability of using an exam as the sole evaluation method depends on whether the exam alone is sufficient to determine an individual's qualifications for the task concerned. PHMSA does not think the restriction on observation of on-the-job performance is in any way related to this acceptability decision. Because this comment did not recognize the parallel statutory requirement and that sole use of an exam as an evaluation method is governed by a separate requirement, PHMSA considers the comment to be insubstantial and thus not an adverse comment.

Comment: In a further comment on §§ 192.809(e) and 195.509(e), DJL Services suggested that the term “on-the-job performance” is not universally understood and should be defined in the regulations.

Response: Operators who use observation of on-the-job performance as a method of evaluation must describe the method in their personnel qualification programs. If PHMSA or a State authority considers an operator's program inadequate, it may order changes to the program. In our experience, this regulatory approach has been satisfactory. It allows operators leeway to account for variations in covered tasks that a special definition could restrain, while providing for governmental oversight. At this time, PHMSA does not see a need to adopt a special definition of on-the-job performance. Since this comment does not explain that the rules would be ineffective without a definition, PHMSA does not consider this comment to be an adverse comment.

Comment: Finally, DJL Services offered general comments on criteria PHMSA might develop to determine covered tasks for which observation of on-the-job performance is the best method of evaluation. Under 49 U.S.C. 60131(d)(1), such tasks would be exempt from the statutory restriction on using observation of on-the-job performance as the sole method of evaluation. DJL Services suggested that observation of on-the-job performance is a suitable method for any task that requires a skill to perform. An additional suggestion was that for complex tasks involving potential hazards, such as pig launching or receiving, observation of performance “ whether on-the-job or during simulation “ should be mandatory, with limited use of written or oral exams.

Response: PHMSA will consider these ideas in any future deliberation on criteria to determine those tasks for which observation of on-the-job performance is the best method of evaluation. However, PHMSA does not consider the comment to be an adverse comment because it does not explain that a change is needed to a rule established by the DFR.

Therefore, this document confirms that the DFR will go into effect on July 15, 2005.

Issued in Washington, DC, on June 10, 2005.

Stacey L. Gerard,

Acting Assistant Administrator/Chief Safety Officer.