34410 Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Proposed Rules

August 19, 1996. To file formally in this

proceeding, participants must file an

original and four copies of all

comments, reply comments and

supporting comments. If participants

want each Commissioner to receive a

personal copy of their comments, an

original plus ten copies must be filed.

Comments and reply comments should

be sent to the Office of the Secretary,

Federal Communications Commission,

Washington, D.C. 20554. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center (Room 239) of the Federal

Communications Commission, 1919 M

Street, N.W., Washington, D.C. 20554.

Ordering Clauses

11. This Notice of Inquiry is issued

pursuant to authority contained in

Sections 4(i), 4(j), 403 and 628(g) of the

Communications Act of 1934, as

amended.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 96–16817 Filed 7–1–96; 8:45 am]

BILLING CODE 6712–01–P

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.

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 safetyrelated 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.
Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Proposed Rules 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
34412 Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Proposed Rules

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
Federal Register / Vol. 61, No. 128 / Tuesday, July 2, 1996 / Proposed Rules 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

49 CFR Parts 192 and 195

[Docket No. PS–94; Notice 4]

RIN 2137–AB38

Qualification of Pipeline Personnel

AGENCY: Research and Special Programs

Administration (RSPA); Department of

Transportation (DOT).

ACTION: Withdrawal of notice of

proposed rulemaking.

SUMMARY: This document is to inform

the public that RSPA is withdrawing the

Notice of Proposed Rulemaking (NPRM)

in Docket No. PS–94 titled

‘‘Qualification of Pipeline Personnel.’’

RSPA is required by Congressional

mandate to establish requirements on

the qualification of personnel

conducting certain tasks on a pipeline

facility. The NPRM has been subject to

considerable scrutiny from many

commenters. However, RSPA believes

that an alternative method of

rulemaking can provide a better forum

to establish communications between

the interested parties and that a

consensus may be achieved on a new

rule on the qualification of pipeline

personnel. RSPA is publishing

elsewhere in this issue of the Federal

Register a document titled ‘‘Notice of

Intent to Form a Negotiated Rulemaking

Committee’’ that will provide a

complete description of the regulatory

alternative.

FOR FURTHER INFORMATION CONTACT:

Albert C. Garnett, (202) 366–2036, or

Eben M. Wyman, (202) 366–0918,

regarding the subject matter of this

document; or the Dockets Unit, (202)

366–4453, for copies of this document

or other material in the docket.

SUPPLEMENTARY INFORMATION: A NPRM

titled ‘‘Qualification of Pipeline

Personnel’’ was published on August 3,

1994 (Docket No. PS–94, Notice 2; 59 FR

39506). The NPRM proposed

qualification standards for pipeline

personnel who perform, or supervise

persons performing, regulated

operation, maintenance, and emergencyresponse functions. The intended effect

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. Following extensive

interaction with the interested parties,

this Notice withdraws that proposal

from Docket No. PS–94. In light of the

many concerns expressed by these

parties, RSPA believes that an

alternative to traditional rulemaking

would be affective to reach consensus

on an personnel qualifications rule.

RSPA is planning to form a committee

that will represent all affected parties to

negotiate the many aspects of this issue,

and to achieve consensus on a new

NPRM to be published in the Federal

Register. The following discussion of

the written comments to the previous

NPRM should be helpful in

understanding the reasons for this

withdrawal.

Discussion of Comments to NPRM and

Development of Rules

RSPA received 131 comments to

Docket No. PS–94, which expressed a

wide variety of interests and concerns.

Comments were received from 111

pipeline companies, 8 pipeline-related

associations, 4 state and federal

agencies, and 8 other interested parties.

The following provides a summary of

the commenters’ issues.

Definitions

Comments were received on certain

definitions in the NPRM. The

definitions of ‘‘qualified

administratively’’ and ‘‘supervisory

persons’’ needed clarification, according

to many commenters. Commenters

alleged that the ‘‘qualified

administratively’’ provisions would be

redundant, because qualification in any

manner would be sufficient, as long as

the person was found proficient in

performing a covered job function or

supervised by a qualified person. Also,

commenters noted that the word

‘‘supervisor’’ might be inappropriate

because the term can be indicative of a

number of positions, including those

located away from a job site. These

commenters thought the term

‘‘supervisor’’ should be deleted and

alternate terms, such as ‘‘qualified

employee,’’ ‘‘lead person,’’ or another

term should be used to describe

someone who directly oversees

personnel performing job functions

covered in the NPRM.

Personnel to be Qualified

A number of commenters expressed

concern about those who would be

subject to this rule. The role of a

persons’ educational background and

work experience in determining

qualification was also addressed.

Concern was also expressed over

whether small gas systems operated by

mobile home parks should be subject to

a qualification rule. Also, the question

of how the proposed rule would cover

contractor personnel was the subject of

many comments. Most commenters

argued that contractors should be held

accountable for their own qualification

and recordkeeping, because it would be

overly burdensome to require pipeline

operators to maintain qualification

records for contractor personnel. RSPA

never proposed to require operators to

be responsible for qualifying contractor

personnel, only to ensure that they are

in fact qualified. This issue is a prime

example of why RSPA believes an

alternative rulemaking method would

provide a better channel of

communication to resolve the

controversy surrounding this regulatory

initiative.

Evaluation and Scheduling

Another major issue was the

evaluation of personnel and how past

experience, education, and other factors

would be considered in assessing

qualification. Many comments stressed

that the operator or the operator’s

designee would know the capabilities of

their personnel and therefore be in the

best position to evaluate and to ensure

their qualification. RSPA believes the

NPRM’s intent was not far from this

view, and that, with open

communication, consensus can be

reached among interested parties.

Qualification Training

The NPRM listed training that would

be required if an employee was found to

be not qualified. This issue generated

many written comments. The

commenters alleged that the language in