[Federal Register Volume 70, Number 114 (Wednesday, June 15, 2005)]
[Rules and Regulations]
[Pages 34693-34695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11864]


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DEPARTMENT OF TRANSPORTATION

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

ACTION: Direct final rule; confirmation of effective date.

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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 
[email protected].

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

[[Page 34694]]

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 
Sec. Sec.  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 (Sec. Sec.  
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 (Sec. Sec.  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 Sec. Sec.  
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 (Sec. Sec.  
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

[[Page 34695]]

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 Sec. Sec.  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 Sec. Sec.  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'' (Sec. Sec.  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 Sec. Sec.  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.
[FR Doc. 05-11864 Filed 6-13-05; 8:52 am]
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