[Federal Register Volume 70, Number 41 (Thursday, March 3, 2005)]
[Rules and Regulations]
[Pages 10332-10336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4122]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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 
---------------------------------------------------------------------------
information.

FOR FURTHER INFORMATION CONTACT: Stanley Kastanas by phone at (202) 
366-3844; or by e-mail at [email protected].

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)).
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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]
BILLING CODE 4910-60-P