Qualification of Pipeline Personnel

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]

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