[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Proposed Rules]
[Pages 34410-34413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16678]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 192 and 195

[Docket No. PS-94; Notice 5]
RIN 2137-AB38


Qualification of Pipeline Personnel

AGENCY: Research and Special Programs Administration (RSPA); Department 
of Transportation (DOT).

ACTION: Notice of Intent (NOI) to Form a Negotiated Rulemaking 
Committee.

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SUMMARY: RSPA proposes to establish a Negotiated Rulemaking Committee 
under the Negotiated Rulemaking Act of 1990 and the Federal Advisory 
Committee Act of 1992 to develop a recommended rule on the 
qualification of personnel performing certain safety- related functions 
for pipelines subject to 49 CFR Parts 192 and 195. The Committee will 
adopt its recommendations through a negotiation process. The Committee 
will be composed of persons who represent the interests affected by the 
rule, such as gas pipeline operators, hazardous liquid and carbon 
dioxide pipeline operators, members of state and federal governments, 
and persons from the public sector. The purpose of this NOI is to 
invite interested parties to submit comments on the issues to be 
discussed and the interests and organizations to be considered for 
representation on the Committee.

DATES: RSPA must receive written comments and requests for 
representation or membership by August 1, 1996.

ADDRESSES: Written comments should be submitted in duplicate to the 
RSPA Dockets Office, attention Verdell Simpkins, Room 8421, Nassif 
building, U.S. Department of Transportation, 400 7th Street SW., 
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Albert C. Garnett, (202) 366-2036, or 
Eben M. Wyman, (202) 366-0918, regarding the subject matter of this 
NOI; or the Dockets Unit, (202) 366-4453, for copies of this NOI or 
other material in the docket.

SUPPLEMENTARY INFORMATION:

I. Background

Notice of Proposed Rulemaking (NPRM)

    An NPRM titled ``Qualification of Pipeline Personnel'' was 
published on August 3, 1994 (Docket No. PS-94; 59 FR 39506). The NPRM 
proposed qualification standards for personnel who perform, or 
supervise persons performing, regulated operation, maintenance, and 
emergency-response functions. The purpose of the NPRM was to improve 
pipeline safety by requiring operators to assure the competency of 
affected personnel through training, testing, and periodic refresher 
training.

Written comments to the NPRM.

    RSPA received 131 comments to the docket that expressed a wide 
variety of interests and concerns. Commenters stated that the NPRM was 
too prescriptive and that the many references to training requirements 
should be modified to place the focus of the NPRM on actual 
qualification, not the methods of achieving it. Most commenters 
asserted that the NPRM should have proposed a more general approach of 
broad requirements for persons performing ``safety related'' functions. 
Following review of the extensive comments to the NPRM, RSPA decided 
that a regulatory process other than traditional rulemaking would 
better address the issues surrounding operator qualifications.

Advisory Committees

    The Technical Pipeline Safety Standards Committee (TPSSC) and the 
Technical Hazardous Liquid Pipeline Safety Standards Committee 
(THLPSSC) were established by statute to evaluate proposed pipeline 
safety regulations. The committees are required to report on the 
technical feasibility, reasonableness, and practicability of the 
proposals.
    Following consideration of the issues of this proposed rulemaking, 
both the TPSSC and THLPSSC expressed their disapproval of the NPRM. 
Instead the Committees presented several motions calling for amendments 
to the proposal. Those motions generally reflected written comments 
submitted to the Qualification of Pipeline Personnel proposed 
rulemaking.

Petition for Withdrawal

    On December 1, 1995, the American Gas Association (AGA), the 
American Public Gas Association (APGA), and the Southern Gas 
Association (SGA) filed a petition for withdrawal of the August 3, 
1994, NPRM and offered an alternative proposal.

Notice of withdrawal of NPRM

    Along with this NOI, RSPA is publishing elsewhere in this issue of 
the Federal Register a document withdrawing the NPRM in Docket No. PS-
94. RSPA briefly indicated the negotiated rulemaking process was an 
alternative method of rulemaking for use in this regulatory action. 
RSPA contends that a negotiated rulemaking process will provide the 
appropriate level of communication among interested parties that is 
needed to resolve the controversies surrounding the qualification 
issues.

II. Regulatory Negotiation

    It can be difficult for an agency to craft effective regulatory 
solutions to certain problems. In the typical rulemaking process, the 
participants often develop adversarial relationships that prevent 
effective communication and creative solutions. The exchange of ideas 
that may lead to solutions acceptable to all interested groups often 
does not occur in the traditional notice and comment system. As the 
Administrative Conference of the United States (ACUS) noted in its 
Recommendation 82-4:

    Experience indicates that if the parties in interest were to 
work together to negotiate the text of a proposed rule, they might 
be able in some circumstances to identify the major issues, gauge 
their importance to the respective parties, identify the information 
and data necessary to resolve the issues, and develop a rule that is 
acceptable to the respective interests, all within the contours of 
the substantive statute.


[[Page 34411]]


47 FR 30708; June 18, 1982.
    The thrust of this recommendation is that representatives of 
affected interests should be assembled to discuss the issue or hazard 
and all potential solutions, reach consensus, and prepare a proposed 
rule for consideration by the agency. After public comment on any 
proposal issued by the agency, the group would reconvene to review the 
comments and make recommendations for a final rule. This inclusive 
process is intended to make the rule more acceptable to all affected 
interests and prevent the need for petitions for reconsideration and 
litigation that often follow promulgation of a final rule.
    The movement toward negotiated rulemaking gained impetus with 
enactment of the Negotiated Rulemaking Act of 1990, 5 U.S.C. 561 et 
seq. More recently, President Clinton issued Executive Order 12866 (EO) 
(58 FR 51735, October 4, 1993), which states the need to reform the 
current regulatory process into one that is effective, consistent, and 
understandable. The objectives of the EO are:

    To reaffirm the primacy of Federal agencies in the regulatory 
decision-making process; to restore the integrity and legitimacy of 
regulatory review and oversight; and to make the process more 
accessible and open to the public.

Id. Section 6(a) of the EO charges government agencies with providing 
the public meaningful participation in the regulatory process:

    In particular, before issuing a notice of proposed rulemaking, 
each agency should, where appropriate, seek the involvement of those 
who are intended to benefit from and those expected to be burdened 
by any regulation . . . Each agency is also directed to explore and, 
where appropriate, use consensual mechanisms for developing 
regulations, including negotiated rulemaking.

Id. at 51740.
    Negotiated rulemakings have been used successfully by the 
Department of Transportation, including the Federal Aviation 
Administration, the United States Coast Guard, the Federal Highway 
Administration, and the National Highway Traffic Safety Administration. 
In addition, the Environmental Protection Agency, and the Occupational 
Safety and Health Administration have successfully used the process.
    RSPA now intends to use this process for the first time, and does 
so with enthusiasm and high expectations. RSPA welcomes the opportunity 
to work with those who will be affected directly by a personnel 
qualification rule, and is confident that the agency and its partners 
will benefit from the process by creating an effective and reasonable 
regulation.
    Section 563(a) of the Negotiated Rulemaking Act and recommends that 
an agency consider whether:

    (1) There is a need for the rule;
    (2) There is a limited number of identifiable interests;
    (3) These interests can be adequately represented by persons 
willing to negotiate in good faith to reach a consensus;
    (4) There is a reasonable likelihood that the committee will 
reach consensus within a fixed period of time;
    (5) The negotiated rulemaking procedure will not unreasonably 
delay the notice of proposed rulemaking;
    (6) The agency has adequate resources and is willing to commit 
such resources to the process; and
    (7) The agency is committed to use the result of the negotiation 
in formulating a proposed rule if at all possible.

RSPA believes that these criteria have been met with respect to 
pipeline safety issues.
    RSPA would charter a negotiated rulemaking committee (Committee) 
under the Federal Advisory Committee Act (FACA), 5 USCS App. 1, and 
would be represented on the Committee to take an active part in the 
negotiations. However, pursuant to section 566(c) of the Negotiated 
Rulemaking Act, the person(s) designated to represent RSPA would not 
facilitate or otherwise chair the proceedings. RSPA is committed to 
this process and is quite optimistic that it will result in the 
issuance of an NPRM and final rule that will be acceptable to the 
members of the Committee. Because of the mandate to issue a rule on 
this subject, RSPA is prepared to go forward with an NPRM that is not 
the product of the negotiations in the unlikely event the negotiation 
fails.

III. Procedures and Guidelines

    The following proposed procedures and guidelines would apply to 
this process, subject to appropriate changes made as a result of 
comments on this Notice or as determined to be necessary during the 
negotiating process.
    (A) Facilitator: RSPA is considering persons to serve as 
facilitator for the negotiating group. This individual will chair the 
negotiations, may offer alternative suggestions toward the desired 
consensus, will help participants define and reach consensus, and will 
determine the feasibility of negotiating particular issues. The 
facilitator may ask members to submit additional information or to 
reconsider their position. RSPA has contacted mediation organizations 
for candidates.
    (B) Feasibility: RSPA has examined the issues and interests 
involved to determine whether it is possible to reach agreement on: (a) 
individuals to represent those interests; (b) the preliminary scope of 
the issues to be addressed; and (c) a schedule for developing a notice 
of proposed rulemaking. On the basis of the history of this issue and 
our preliminary inquiry, RSPA believes that regulatory negotiation can 
be successful in developing a workable proposal for a notice of 
proposed rulemaking and a final rule, and that the potential 
participants listed below would adequately represent the affected 
interests.
    (C) Requests for Representation: The following have been 
tentatively identified as representing interests that are likely to be 
significantly affected by the rule:
    (1) Small pipeline operators;
    (2) Large pipeline operators;
    (3) State pipeline safety representatives;
    (4) Representatives of other interested Federal agencies;
    (5) Public environmental organizations;
    (6) Other interested public organizations;
    (7) Representatives of labor unions; and
    (8) RSPA's Office of Pipeline Safety.
    RSPA proposes that persons or organizations selected by the various 
interests be named to the Committee. The following organizations have 
been tentatively identified as organizations that would serve on the 
committee:
    (1) American Gas Association;
    (2) American Petroleum Institute;
    (3) Interstate Natural Gas Association of America;
    (4) American Public Gas Association;
    (5) National Association of Pipeline Safety Representatives;
    (6) National Association of State Fire Marshals;
    (7) Midwest Gas Association (a training organization);
    (8) Environmental Defense Fund; and
    (9) RSPA's Office of Pipeline Safety.
    Each organization would send a representative to serve on the 
committee. RSPA will consider applications for representation from any 
interests not appropriately represented by those named in this list. 
Please identify such interests if they exist.
    Each application for membership or nomination to the Committee 
should include: (i) the name of the applicant or nominee and the 
interests such person would represent; (ii) evidence that the applicant 
or nominee is authorized to represent parties related to the interests 
the person proposes to represent; (iii) a written commitment that the 
applicant

[[Page 34412]]

or nominee would participate in good faith; and (iv) the reasons 
representatives identified in the Notice do not accurately portray the 
interests affected by the rule. If an additional person or interest 
requests membership or representation on the Committee, RSPA shall 
determine (i) whether that interest will be substantially affected by 
the rule, (ii) if such interest would be adequately represented by an 
individual already on the Committee, and (iii) whether the requester 
should be added to the group or whether interests can be consolidated 
to provide adequate representation. Please note that each individual or 
organization affected by a final rule need not have its own 
representative on the Committee. Rather, each interest must be 
adequately represented, and the Committee should be fairly balanced. 
Individuals who are not part of the Committee may attend sessions and 
confer with or provide their views to Committee members.
    (D) Good Faith: Participants must be committed to negotiate in good 
faith. Therefore, it is important that senior individuals within each 
interest group be designated to represent that interest. No individual 
will be required to ``bind'' the interests he or she represents, but 
the individual should be at a high enough level to represent the 
interest with confidence. For this process to be successful, the 
interests represented should be willing to accept the final Committee 
product.
    (E) Notice of Intent to Establish Advisory Committee and Request 
for Comment: In accordance with the requirements of FACA, an agency of 
the federal government cannot establish or utilize a group of people in 
the interest of obtaining consensus advice or recommendations unless 
that group is chartered as a Federal advisory committee. It is the 
purpose of this NOI to indicate our intent to create a Federal advisory 
committee, to identify the issues involved in the rulemaking, to 
identify the interests affected by the rulemaking, to identify 
potential participants who will adequately represent those interests, 
and to ask for comment on the use of regulatory negotiation and on the 
identification of the issues, interests, procedures, and participants. 
The first meeting is tentatively scheduled for August 28, 1996.
    (F) Final Notification: After evaluating comments received as a 
result of this NOI, RSPA will issue a final document announcing the 
establishment of the Federal advisory committee, unless it determines 
that such action is inappropriate in light of comments received, and 
the composition of the Committee. After the Committee is chartered the 
negotiations would begin.
    (G) Administrative Support and Meetings: Staff support would be 
provided by RSPA and meetings would take place in Washington, D. C., 
unless agreed otherwise by the Committee.
    (H) Tentative Schedule: If the Committee is established and 
selected, RSPA will publish a schedule for the first meeting in the 
Federal Register. The first meeting will focus on procedural matters, 
including dates, times, and locations of future meetings. Notice of 
subsequent meetings would also be published in the Federal Register.
    RSPA expects the Committee to reach consensus and prepare a report 
recommending a proposed rule within eight months of the first meeting. 
However, if unforeseen delays occur, the Administrator may agree to an 
extension of time if the consensus of the Committee is that additional 
time will result in agreement. The process may end earlier if the 
facilitator so recommends.
    (I) Committee Procedures: Under the general guidance of the 
facilitator, and subject to legal requirements, the Committee would 
establish detailed procedures for the meetings.
    (J) Record of Meetings: In accordance with FACA's requirements, 
RSPA would keep a record of all Committee meetings. This record would 
be placed in the public docket for this rulemaking. Meetings of the 
Committee would generally be open to the public.
    (K) Consensus: The goal of the negotiating process is consensus. 
RSPA proposes that the Committee would develop its own definition of 
consensus, which may include unanimity, a simple majority, or 
substantial agreement such that no member will disapprove the final 
recommendation of the Committee. However, if the Committee does not 
develop its own definition, consensus shall be unanimous concurrence.
    (L) Notice of Proposed Rulemaking: The Committee's first objective 
is to prepare a report containing a notice of proposed rulemaking, 
preamble, and economic evaluation. If consensus is not obtained on some 
issues, the report should identify the areas of agreement and 
disagreement, and explanations for any disagreement. It is expected 
that participants will address cost/benefit, paperwork reduction, and 
regulatory flexibility requirements. RSPA would prepare an economic 
assessment if appropriate.
    RSPA would accept the Committee proposal unless it is inconsistent 
with statutory authority of the agency or other legal requirements or 
does not, in the agency's view, adequately address the subject matter. 
In that event, the preamble to the NPRM would explain the reasons for 
its decision.
    (M) Key Issues for Negotiation: RSPA has reviewed written comments, 
petitions, and pipeline operating practices, and has engaged in 
extensive dialogue on the issue of qualification of pipeline personnel. 
Based on this information and rulemaking requirements, RSPA has 
tentatively identified major issues that should be considered in this 
negotiated rulemaking. Issues related to operator qualification not 
specifically listed in this Notice may be addressed as they arise in 
the course of the negotiation. Comments are invited concerning the 
appropriateness of these issues for consideration and whether other 
issues should be added:
    (1) Covered functions. What is the definition of a covered 
function? What areas of an operator's pipeline system be covered by 
this rule? Should these be the specific duties named in the NPRM, or 
should a more general approach be implemented to describe what 
functions will be covered?
    (2) Level of proficiency. What level of skill must be obtained to 
achieve qualification? How will this be measured in evaluating an 
employee's qualification?
    (3) Supervisory persons. What is the definition of a supervisory 
position? What criteria must be maintained to allow one to 
``supervise'' unqualified personnel performing covered functions?
    (5) Personnel to be qualified. Which employees should be subject to 
this rule? How should contractor personnel qualification be addressed? 
How will small gas operators and master meter systems be required to 
comply?
    (6) Instructors. Who will be responsible for qualifying unqualified 
personnel? Who will designate these individuals? What skill level will 
be appropriate for one to serve as an instructor?
    (7) Employee evaluation. What criteria will be observed in 
evaluating qualification? Who will conduct this evaluation? How will 
previous training, testing, work experience, and other methods of 
qualification be addressed?
    (8) Elements of qualification. What methods would be appropriate in 
order to make one qualified? Should these methods be specifically 
addressed, or should the operator have discretion in choosing how their 
personnel may become qualified?
    (9) Maintaining qualification. How can operators ensure that 
employees performing covered functions maintain

[[Page 34413]]

the proper amount of skill to be considered qualified? Are 
``refresher'' courses needed?
    (10) Competency reviews. In the event an incident or accident is 
attributed to error, how will the operator reevaluate and monitor an 
individual's qualification? How long should such a competency review 
take?
    (11) Recordkeeping. How will qualification records be maintained? 
What sorts of qualification schedules (i.e.--training/testing results) 
must be maintained?
    (12) Compliance dates. What time frame would be required for 
implementation of an operator's qualification program? When would 
personnel evaluation take place? Should time frames be consistent 
between large and small pipeline operators?

IV. Public Participation

    RSPA invites comments on all issues, procedures, guidelines, 
interests, and suggested participants embodied in this NOI.

    Issued in Washington, D.C. June 26, 1996.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-16678 Filed 7-01-96; 8:45 am]
BILLING CODE 4910-60-P