# Pipeline Safety: Pipeline Operator Public Awareness Program

- **operation:** document
- **citation:** 70 FR 28833
- **title:** Pipeline Safety: Pipeline Operator Public Awareness Program
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2005-05-19
- **effective on:** 2005-06-20
- **summary:** This Final Rule amends the requirements for pipeline operators to develop and implement public awareness (also known as public education) programs. The changes are part of PHMSA's \1\ Office of Pipeline Safety's (OPS) broad pipeline communications initiative to promote pipeline safety. Promoting pipeline safety requires enhanced communications (by pipeline operators) with the public to increase public awareness of pipeline operations and safety issues. The amendments for developing and implementing public awareness programs address the requirements of the Pipeline Safety Improvement Act (PSIA) of 2002 \2\ and incorporate by reference the guidelines provided in the American Petroleum Institute (API) Recommended Practice (RP) 1162, "Public Awareness Programs for Pipeline Operators." \3\ ---------------------------------------------------------------------------
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Federal Register, Volume 70 Issue 96 (Thursday, May 19, 2005) [Federal Register Volume 70, Number 96 (Thursday, May 19, 2005)] [Rules and Regulations] [Pages 28833-28843] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 05-9464] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 192 and 195 [Docket No. RSPA-03-15852; Amdt. Nos. 192-100, 195-84] RIN 2137-AD96 Pipeline Safety: Pipeline Operator Public Awareness Program AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This Final Rule amends the requirements for pipeline operators to develop and implement public awareness (also known as public education) programs. The changes are part of PHMSA's \1\ Office of Pipeline Safety's (OPS) broad pipeline communications initiative to promote pipeline safety. Promoting pipeline safety requires enhanced communications (by pipeline operators) with the public to increase public awareness of pipeline operations and safety issues. The amendments for developing and implementing public awareness programs address the requirements of the Pipeline Safety Improvement Act (PSIA) of 2002 \2\ and incorporate by reference the guidelines provided in the American Petroleum Institute (API) Recommended Practice (RP) 1162, ``Public Awareness Programs for Pipeline Operators.'' \3\ --------------------------------------------------------------------------- \1\ The Research and Special Programs Administration (RSPA) was recently renamed the Pipeline and Hazardous Materials Safety Administration (PHMSA). The history of this rulemaking includes references to both RSPA and PHMSA. For the purposes of this document, the terms are used interchangeably. \2\ Section 5 of the Pipeline Safety Improvement Act (PSIA) of 2002 (Pub. L. 107-55, 49 U.S.C. 60116, December 12, 2002). \3\ API RP 1162 provides guidance on development, implementation, and evaluation of pipeline operator ``public awareness programs.'' Note that ``public education programs,'' as used in this rule, and ``public awareness programs,'' as used in API RP 1162, are considered to be the same and are used interchangeably. DATES: Effective Date: This final rule takes effect on June 20, 2005. The incorporation by reference of API RP 1162 in this Final Rule was approved by Director of the Federal Register as of June 20, 2005. FOR FURTHER INFORMATION CONTACT: Blaine Keener by phone at 202.366.0970, by mail at 400 7th St., SW., Room 2103, Washington, DC 20590, or by e-mail at [email protected] . [[Page 28834]] SUPPLEMENTARY INFORMATION: I. Background This Final Rule concerns pipeline efforts to improve public awareness of pipeline operations and safety issues through enhanced communications with: The public (including residents and places of congregation, such as businesses, schools, hospitals, prisons, and other places where people gather) in the pipeline vicinity and its associated rights-of-way and pipeline facilities; State and local emergency response and planning officials (e.g., State and county emergency management agencies (EMAs) and local emergency planning committees (LEPCs)) and first responder organizations; Local public officials and governing councils of affected municipalities and school districts; and Excavators. Effective public awareness programs are vital to continued safe pipeline operations. Such programs are an important factor in establishing communications with affected stakeholders, providing information necessary to enhance public awareness of pipelines, and communicating stakeholder roles relative to pipeline safety. Effective programs also can increase awareness and understanding of the important energy transportation role of pipelines, pipeline operations, associated public and environmental risks, and the preventive and mitigative steps taken to reduce those risks. Additionally, they can improve results in damage prevention, reduce encroachments on pipeline rights-of-way, improve pipeline safety and environmental performance, and enhance emergency response coordination. This change in requirements for pipeline operator public awareness programs is part of PHMSA's broad effort to enhance safety by promoting improved public communications among the pipeline industry and government pipeline regulators. The promulgation of new requirements for pipeline operator public awareness programs also responds to provisions in the PSIA of 2002 calling for the Secretary of Transportation to issue standards prescribing the elements of an effective public education program. Statutory Considerations & Comments The statutory provision specific to public education is discussed elsewhere in this document. In general, OPS authority to issue safety standards to the design, construction, operation, replacement, and maintenance of pipelines is found in 49 U.S.C. 60102(a). Pursuant to 49 U.S.C. 60102(b), a pipeline safety standard must be practicable and designed to meet the need for pipeline safety and for protection of the environment. In order to accomplish this, OPS must consider a number of factors in issuing a safety standard. These factors include the relevant available pipeline safety and environmental information, the appropriateness of the standard for the particular type of facility, the reasonableness of the standard, and reasonably identifiable or estimated costs and benefits. OPS considered these factors in developing this rule and provides its analysis in the appropriate paragraphs of the preamble to this Final Rule. OPS also considered comments received from the public along with comments and recommendations of the Technical Pipeline Safety Standards Committee that are discussed below. Pipeline Safety Improvement Act of 2002 On December 17, 2002, the President signed into law the PSIA of 2002. Section 5 mandates public education program activities by pipeline operators, the Secretary of Transportation, and appropriate State agencies. It requires owners or operators of a gas or hazardous liquid pipeline facility to carry out a continuing program to educate the public on: Use of a one-call notification system prior to excavation and other damage prevention activities; Possible hazards associated with unintended releases from the pipeline facility; Physical indications that such a release may have occurred; Steps that should be taken for public safety in the event of a pipeline release; and Procedures to report such an event. Not later than 12 months after the date of enactment, each owner or operator of a gas or hazardous liquid pipeline facility was to review its existing public education program(s) for effectiveness and modify the program as necessary. The completed program was to include activities to advise affected municipalities, school districts, businesses, and residents of pipeline facility locations. It was to be submitted to the Secretary or, the appropriate State agency, and would be periodically reviewed. The Secretary was authorized to issue standards prescribing the elements of an effective public education program and to develop material for program use. Self-Assessment Forms To support pipeline operators in partially addressing the PSIA requirements, PHMSA prepared a self-assessment form for use in reviewing existing public education programs. The completed self- assessment aided and supported the operator in reviewing its program and in determining whether its adequacy and effectiveness in conveying the messages defined in the PSIA to the appropriate audiences. This assessment served as the basis for individual operators to define any necessary program improvements. The aggregate results of the self- assessments help PHMSA and the industry in identifying areas where operator programs overall are weak or in need of additional focus. A draft self-assessment form was presented to attendees at two public workshops held during September 2003, in Houston, Texas and Baltimore, Maryland for comment. In November 2003, PHMSA issued an advisory bulletin \4\ advising all pipeline operators to complete and return the self-assessment form by December 17, 2003 (the deadline prescribed in the PSIA). Aggregate results from those self-assessments may be viewed online at http://primis.rspa.dot.gov/edu/RP1162/SA_Statistics_050704.pdf . --------------------------------------------------------------------------- \4\ 68 FR 66155, November 25, 2003, Pipeline Safety: Self- Assessment of Public Education Programs. This advisory bulletin may be viewed at http://ops.dot.gov/whatsnew/AdvBulletinADB0308.pdf . --------------------------------------------------------------------------- PHMSA is promulgating this Final Rule requiring operators to submit their completed programs to the Secretary of Transportation in fulfillment and implementation of PSIA's Section 5 requirements. In setting forth new requirements for pipeline operator public awareness programs, PHMSA is also responding to provisions in Paragraph C, AStandards,'' of Section 5 of the PSIA for the Secretary of Transportation to issue standards prescribing the elements of an effective public education program. Standards Committees Process PHMSA has two legislatively mandated technical advisory committees. The Natural Gas Pipeline Safety Act of 1968 required establishment of the Technical Pipeline Safety Standards Committee (TPSSC). The Hazardous Liquid Safety Act of 1979 required creation of the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC). The Committees' primary purpose is to review proposed pipeline safety standards for technical feasibility, [[Page 28835]] reasonableness, cost-effectiveness, and practicability. The Committees also serve as a sounding board for discussing pipeline safety policy issues as well as legislative initiatives. Each group is composed of a balanced representation of Federal, State and local government agencies, the pipeline industry, and the public. In 2000, PHMSA (then known as the Research and Special Programs Administration (RSPA)), sponsored a pipeline communications exploratory group under its technical advisory committees. The groups met to explore the subject of pipeline communications and to identify opportunities for improvement. In December 2004, the two groups concurred with this rule's issuance. Communications Efforts PHMSA increased its efforts to communicate with the public regarding pipeline safety during several regulatory public meetings on Liquid and Gas Pipeline Integrity Management and Operator Qualification (see Docket Nos. RSPA-99-6355, RSPA-00-7408, and RSPA-00-7666). These efforts also included public meetings and public-access Web sites. These meetings provided opportunities for the public and other stakeholders to comment on the pipeline information needs of the public, local officials, and emergency responders. PHMSA sponsored other public meetings to provide open forums for the exchange of pipeline safety information among PHMSA, community representatives, environmental organizations, first responders, city/ county/state governments, and pipeline operators. Public stakeholders often expressed their desire to receive more specific information on pipeline communication initiatives. Consequently, on January 29, 2003, PHMSA and the Washington State Utilities and Transportation Committee (WUTC) co-sponsored a public meeting on pipeline communications at the Bellevue Community College in Bellevue, WA. The meeting included panel discussions on current PHMSA initiatives, the development of API RP 1162, integrity management communications, and pipeline performance metrics. A meeting transcript and a copy of presentations can be found at http://primis.rspa.dot.gov/comm/Bellevue_2003_01_29.htm . PHMSA public communication initiatives include: Development of a public Web site for pipeline information ( http://primis.rspa.dot.gov/comm ); Creation of the Community Assistance and Technical Services (CATS) program and staffing new positions within each PHMSA Pipeline Safety regional office. CATS is an innovative program designed to meet the growing demand for enhanced stakeholder communications and to help facilitate permitting processes related to pipeline safety. The CATS mission is to advance public safety, environmental protection, and pipeline reliability by facilitating clear communications among all pipeline stakeholders, including the public, the operators, and government officials; Established a partnership with the National Association of State Fire Marshals (NASFM) to provide resources. This includes developing information and training aimed at enhancing the safety of first responders responding to pipeline accidents and of those assessing pipeline security risks. This collaboration will: assure that firefighters can safely respond to pipeline incidents; encourage NASFM members to join with the damage prevention community; encourage industry and local officials to ensure pipeline safety; educate the public on how to live safely near pipelines; improve pipeline awareness and improve security preparedness; and help with accident reporting and investigation for a better understanding of causes and consequences; In 2002, PHMSA asked the Transportation Research Board (TRB) of the National Academies to examine model land use practices by local communities, with an objective to develop guidance and enhance communications to better manage pipeline encroachment risks. The TRB was asked to: Examine evidence of risks to the public with increased development and population in proximity to pipelines; understand how these risks vary based on differences in product, pipeline characteristics, and other features; and explore the feasibility of establishing development setbacks that local governments might use in regulating encroaching development around existing pipelines. The TRB study was subsequently modified to address a PSIA requirement that PHMSA and the Federal Energy Regulatory Commission (FERC) conduct a study of population encroachment on pipeline rights-of-way. The results of the TRB study are published in TRB Special Report 281, ``Transmission Pipelines and Land Use: A Risk-Informed Approach.'' PHMSA submitted an implementation plan to Congress on January 10, 2005; it addresses the TRB recommendations made in SR 281; In 1988, the TRB published Special Report (SR) 219: Pipelines and Public Safety. It assessed the adequacy of measures used to protect the public near pipelines. TRB SR 219 examined land use adjacent to pipelines and methods that could be used to increase the public safety. PHMSA responded to recommendations for damage prevention, land use, and emergency preparedness measures designed to help reduce the risks due to pipeline accidents; In 1998, PHMSA initiated and sponsored a damage prevention practices study associated with existing one-call notification systems. The study responded to authorizations in the Transportation Equity Act for the 21st Century (TEA-21), signed into law on June 9, 1998. It examined damage prevention practices to determine which were most effective in protecting the public, excavators, and the environment, and preventing disruptions to public services and underground facilities. Results were reported in the landmark ``Common Ground Study of One Call Systems and Damage Prevention Best Practices'' in which 133 damage prevention Best Practices were identified; and Prior to passage of the PSIA of 2002, the pipeline industry began developing recommendations for pipeline operator public awareness programs, which resulted in establishing the API RP 1162, ``Public Awareness Programs for Pipeline Operators.'' API developed RP 1162 with extensive collaboration with various segments of the pipeline industry along with input from PHMSA and State pipeline regulators. PHMSA aggressively promoted the development of API RP 1162.\5\ PHMSA acknowledges the substantial work and collaboration that went into the development of API RP 1162 by incorporating it by reference into this rule. --------------------------------------------------------------------------- \5\ A link to API RP 1162 on the API standards Web site is at http://primis.rspa.dot.gov/edu/rp1162.htm . --------------------------------------------------------------------------- American Petroleum Institute Recommended Practice 1162 In 2001, API began developing a new recommended practice for hazardous liquid pipeline operator public awareness programs. PHMSA recognized the potential to support the recommended practice its efforts to promote safety through improved public education and communications. At the request of, and with the support of PHMSA, API expanded the scope of the recommended practice to include gas transmission and distribution operators. [[Page 28836]] This was accomplished through formation of a multi-industry task force including representation from hazardous liquid, gas transmission, and gas distribution pipeline operators, as well as trade organizations representing the individual industry segments. Representatives of PHMSA and the National Association of Pipeline Safety Representatives (NAPSR) (representing State pipeline regulatory agencies) participated in meetings and provided input into both the development process and the content of the document known as API RP 1162. From the beginning of the process, PHMSA indicated to the task force and at public meetings that it would consider incorporating the guidance provided in RP 1162 within its planned rulemaking on operator public education programs. The development of API RP 1162 complies with API Procedures for Standards Development, as approved by the American National Standards Institute (ANSI). More information on the development of RP 1162 and on API procedures can be found online at http://committees.api.org/pipeline/standards/index.html . Stakeholders had opportunities to provide comment during the document's development; this information is available in the docket. Industry trade organizations representing pipeline operators generally agreed with the direction of PHMSA and the work of the API RP 1162 task force. In response, several trade organizations issued a Joint Statement on Enhancing Public Awareness Programs for the Pipeline Industry (May 28, 2003), which committed the industry to adopting ``* * * a consensus standard establishing a baseline public awareness program for pipeline operators * * *'' and urged PHMSA ``* * * to satisfy any need to supplement current requirements for public awareness programs by incorporating [API] RP 1162 into its regulations * * *.'' Executives from leading industry associations and organizations signed the joint statement. Notice of Proposed Rulemaking On June 24, 2004, PHMSA issued a Notice of Proposed Rulemaking (NPRM) with request for comment (68 FR 35279), with comment period closing on August 23, 2004. PHMSA proposed to require each operator of a hazardous liquid or gas pipeline to develop, implement, and maintain a public education program compliant with the requirements of API RP 1162. The proposal applied to all pipelines regulated under 49 CFR Parts 192 and 195, including: Interstate and intrastate hazardous liquid transmission pipelines; Interstate and intrastate natural gas transmission pipelines; Natural gas distribution pipelines; and Oil and gas gathering lines. PHMSA proposed that operators be required to develop and implement public awareness programs addressing specific stakeholder audiences. PHMSA noted that API RP 1162 provides program guidance for each audience regarding the types of messages to be delivered, the message delivery frequency, and the methods/media to deliver the message. API RP 1162 includes baseline program guidance applicable throughout the operator's pipeline system. It also includes supplemental guidance providing considerations to determine where, when, and how to enhance the baseline program to provide the appropriate level of public awareness outreach. Baseline and supplemental program recommendations for different pipeline operator types are summarized in a set of tables in API RP 1162. Additionally, the document provides that each operator establish and periodically update a written public education program covering all specified program elements. II. Comment Discussion In response to the NPRM, PHMSA received written comments from: Pipeline operator companies (21); pipeline industry trade associations (8); the Gas Pipeline Technical Committee (GPTC); third-party vendors to the pipeline industry (2); members of the public (7); and the Washington Utilities and Transportation Commission, a state pipeline safety regulatory agency. Industry comments were received from: American Gas Association (AGA); American Petroleum Institute (API); American Association of Oil Pipelines (AOPL); American Public Gas Association (APGA); Atmos Energy; Burrton, KS, Municipal Gas Distribution (Jon Roberts); Columbia Gas Transmission Corporation; Duke Energy Field Services; Dynegy Midstream Services L.P.; El Paso Corporation; Enbridge Energy Company, Inc.; Gas Piping Technology Committee (GPTC); KeySpan Energy; Kinder Morgan Inc.; Michigan Consolidated Gas Company (MichCon); Nicor Gas; NiSource Energy Service Company; Paiute Pipeline (Southwest Gas Corporation); PECO; Peoples Gas Light and Coke Company; Pipeline Association for Public Awareness; PSEG Services Corporation; Southern California Gas Company and San Diego Gas and Electric; Southern Union Co.; Southwest Gas Corporation; Sunoco Logistics Partners, L.P.; Texas Oil and Gas Association (TxOGA); Interstate Natural Gas Association of America (INGAA); Texas Pipeline Association; and Xcel Energy. Third-party vendors to the pipeline industry submitting comments include Oleksa & Associates and Metrix Matrix Inc. Organizations and individuals representative of the public who submitted comments include: The Pipeline Safety Trust; the Washington State Citizens Committee on Pipeline Safety; and five individuals. Commenters overall were supportive of the need for pipeline operators to conduct and manage effective public awareness/education programs, acknowledging that such programs were vital to the safe operation of oil and gas pipelines. Commenters were generally supportive of the proposal to incorporate API RP 1162 by reference into rule. However, some commenters opposed the proposed approach of incorporating API RP 1162 in toto as a regulatory requirement, as described in the NPRM. These along with many others offered particular comments or suggested alternatives. Some commenters considered that the proposed rule does not go far enough in requiring operators to provide specific other information that is outside the current scope of the proposed rule, or did not require a broad enough outreach to the general public. The comments, discussed below, have been categorized as follows: A. Need for the Rule. B. Incorporation of API RP 1162 In Toto as a Regulatory Requirement. C. ``Awareness'' versus ``Education'. D. Inspection, Enforcement, and Compliance. 1. Inspection Program. 2. Cooperative Efforts. 3. Implementation. 4. Evaluation Frequency. 5. Submission Periods. E. Scope of the New Rule. 1. Information Breadth. 2. Rule Overlap. 3. Emergency Response Plans. F. Resource Requirements. A. The Need for a Rule on Pipeline Operator Public Education Programs Several commenters opposed the adoption of API RP 1162 into a new rule based on the thought that there is no need for a new rule on public education at all. Two commenters stated that existing rules (49 CFR 192.614, 192.615, and 192.616) are adequate. One noted that those existing rules should be more [[Page 28837]] effectively enforced. Another commenter opposed the proposed rule since the PSIA of 2002 was ``clear and unambiguous'' and that requiring operators to have effective public awareness programs through further regulation would be counterproductive. This and other commenters noted that the PSIA does not require DOT to develop standards prescribing the elements of public education programs. Another commenter opposed incorporating API RP 1162 into regulations until it has a chance to mature as operators implement it into their procedures. Response PHMSA recognizes that operators should have existing public education programs under the current regulations requiring operators to conduct damage prevention programs (Sec. 192.614 and Sec. 195.442), establish emergency plans and maintain liaison with emergency officials (Sec. 192.615 and Sec. 195.402), and conduct public education programs (Sec. 192.616 and Sec. 195.440). However, PHMSA considers that these current regulations are limited in scope and specificity. Additionally, the results of operator self-assessments and public meetings revealed that some operators do not have adequate public education programs and are in need of specific guidance to comply. The broadened scope and added specificity provided in the guidance presented in API RP 1162 will be of significant benefit. Increased public awareness obtained through enhanced operator public education programs is expected to result in fewer pipeline accidents from third- party damage and improved emergency response if pipeline accidents do occur. On this basis, pipeline industry organizations have already endorsed the incorporation by reference of API RP 1162 into new regulatory requirements for pipeline operator public education programs. Finally, the PSIA demonstrates Congressional intent and provides that DOT may issue standards prescribing elements of effective public education programs for pipeline operators. This rulemaking will assist operators in complying with Congressional mandates. PHMSA considers development and implementation of public education programs consistent with the guidance provided in API RP 1162 as enabling pipeline operators and regulators to evaluate operator programs for compliance and effectiveness. We believe the guidance will enable operators to determine where and how public awareness programs need to be modified to ensure their effectiveness. B. Incorporation of API RP 1162 In Toto as a Regulatory Requirement Eight commenters, including APGA, AGA, and GPTC, opposed the rule as proposed on the basis that API RP 1162 should not be incorporated in its entirety and its guidance and recommendations should not be translated into requirements. Eleven other commenters, including API, AOPL, and INGAA expressed their support for the proposed rule and support for PHMSA's intent to incorporate API RP 1162 by reference. However, these commenters also cautioned that the effort was not developed, nor was it intended, as a requirements document. They noted that PHMSA should clarify specifically what is required of operators and that API RP 1162 should be referenced as Aguidance material only.'' These commenters noted that PHMSA should ensure that the flexibility afforded operators to develop and implement effective public awareness programs according to their needs and unique system parameters, as was intended in API RP 1162, is retained. Their comments address the perception that API RP 1162 is a recommended practice providing guidance affording an operator flexibility to develop an optimum public awareness program, through the use of enabling words such as ``should,'' ``might,'' ``could,'' ``may,'' and ``can.'' They consider that such flexibility will be lost if RP 1162 is incorporated in toto into a rule. Concern exists that the guidance and recommendations would translate into requirements as those enabling words morph, through interpretation, into the prescriptive ``shall.'' More than one commenter noted they realized this perception in the NPRM preamble language which conveyed that the guidance of API RP 1162 was to become requirements to which operators must comply. At least three commenters quoted or paraphrased the preamble to the NPRM in support of this perception. The commenters noted that the NPRM stated: ``The rule requires each pipeline operator to develop * * * a public education program that complies with the requirements of API RP 1162 * * *. API RP 1162 defines requirements * * * including baseline requirements * * * and supplemental requirements * * *. Operators are required to consider* * *.'' Multiple commenters noted that the proposed rule will make mandatory every guidance recommendation in API RP 1162 and that this will remove all flexibility for operators written into the practice and that will have a negative impact on operator public awareness programs. Several commenters also noted that this will lead to confusion among operators and regulators alike about what is enforceable and what is not. The APGA and the AGA both noted that PHMSA should reiterate its discussion published in 64 FR 15929, April 2, 1999, of how consensus standards, recommended practices, and publications are incorporated by reference. PHMSA considers that when an industry recommended practice is incorporated by reference into regulation, operators ``would be expected to follow the provisions [of the recommended practice] unless the operator notes in the procedural manual the reasons why compliance with all or certain provisions is not necessary * * *.'' Response PHMSA recognizes that adoption of recommended practices into regulation can cause some concern as the distinction between requirements and recommendations is not always clear. Under this rule, each operator is required to develop and implement a public awareness program consistent with the guidance provided in API RP 1162. The operator's program must include all applicable elements of API RP 1162 that are baseline, or the operator must document the rationale and justification for why those elements are not included in its program. The operator must also document consideration as to the supplemental elements of RP 1162 and provide the basis for program inclusion or exclusion of those elements. The Appendices to RP 1162 are intended to provide additional information, clarification, and examples relative to the guidance provided in the practice. There is no intent that every occurrence of ``should,'' ``may,'' or ``can'' found in API RP 1162 be translated to ``shall'' as a result of incorporation of the practice by reference into the rule. As noted by APGA and AGA, PHMSA previously expressed \6\ its position regarding operator consideration of practices that are incorporated into regulation by reference. The Final Rule is consistent with that position; operators will have to follow the provisions of the practice unless the operator notes in its procedural manual the reasons why compliance with all or certain provisions of the practice is circumstantially unnecessary. --------------------------------------------------------------------------- \6\ Reference 64 FR 15929, April 2, 1999. --------------------------------------------------------------------------- [[Page 28838]] In addition to developing public awareness programs reflecting consideration of the provisions of API RP 1162, under the PSIA of 2002, those operator programs shall specifically: Include provisions to educate the public on the use of a one-call notification system prior to excavation and other damage prevention activities; identify possible hazards associated with unintended releases from the pipeline facility; identify physical indications that such a release may have occurred; outline the steps that should be taken for public safety in the event of a pipeline release; and outline the steps on how to report such an event. The programs shall include activities to advise affected municipalities, school districts, businesses, and residents of pipeline facility locations. C. ``Awareness'' Versus ``Education'' Several commenters suggested there was a distinction between public ``awareness'' as used in API RP 1162 and public ``education'' as used in the proposed rule. They proposed that PHMSA should clarify that the two terms refer to the same program obligation. One commenter said the use of `awareness' is an ``improvement over `education' in that `awareness'' implies two-way communication instead of the one-way communication implied by `education.' '' Response PHMSA considers ``public education programs,'' as used in the PSIA, and ``public awareness programs,'' as used in API RP 1162, to address the same concept. The level of public awareness regarding pipeline operations and safety can be improved only through demonstratively effective education and communication programs. D. Inspection, Enforcement, and Compliance 1. Inspection Programs Several commenters, including API, AOPL, Kinder-Morgan, and Enbridge, commented that PHMSA should consider using a centralized group to perform operator inspections and enforcement for the new rule rather than handling inspection and enforcement through separate field organizations. This, they noted, would allow PHMSA to designate and train a more specialized group of inspectors and would promote a more consistent approach in the interpretations of many aspects of API RP 1162 that are not prescriptive in nature. Some commenters used the analogy of PHMSA's integrity management approach wherein teams composed of inspectors from across different regions were used to inspect operators against program criteria. Response PHMSA will develop criteria to evaluate operator public awareness programs against the requirements of this rule. The use of a standard set of criteria will facilitate consistent requirements interpretations and operator program evaluations. PHMSA is considering the use of an approach wherein a third-party contractor would serve as a clearinghouse. The contractor would perform the initial reviews of operator programs against pre-defined criteria for completeness and minimal adequacy. This third-party review would utilize a checklist approach to identify if operator programs included all of the elements of a fully-developed program consistent with the rule and with the guidance provided in API RP 1162. The results of such third-party reviews would be used to identify where best to use PHMSA inspector resources in inspecting particular operator programs in further detail in the field. One PHMSA emphasis is on building effective programs; consideration is being given to having the third- party contractor work interactively with operators, where appropriate, to establish a more fully-developed program. 2. Cooperative Efforts Several commenters suggested PHMSA should provide clear direction to operators regarding the acceptability of cooperative or coalition efforts. These comments address the possibility that operators may want to join together cooperatively to achieve cost-effectiveness in outreach efforts along common rights-of-way or within geographic areas. Similarly, AGA and Southwest Gas Corporation noted that operators having transmission and distribution facilities within the same geographic area should have the flexibility to design either separate or common programs for those facilities. These comments pose the possibility that some operators may want to take advantage of surveys and evaluations performed by trade associations and others to demonstrate the effectiveness of their own outreach efforts. Response API RP 1162 provides general ``baseline'' program recommendations for the audiences, message content, and communication frequencies that operators should consider in the development and implementation of their public awareness programs. It also provides supplemental guidance that should be considered for use in particular situations where it is appropriate to enhance the baseline program. It does not specify details of how each operator is to achieve effective public awareness nor does it attempt to suggest which approach would be most effective in all cases. Rather, API RP 1162 specifically notes that it does not take into consideration the unique attributes and characteristics of individual pipeline operators' pipelines and facilities. Neither is PHMSA, in incorporating API RP 1162 by reference into this rule, attempting to define the method or approach operators must use (or not use) to achieve effective programs. Each operator must consider the unique characteristics of its pipelines and facilities, including their geographic location and proximity to other facilities. Operators must then determine the methods and approach that will achieve the best results in ensuring that educational outreach efforts reach those audiences that may be affected by, and should be aware of, the operator's facilities. Similarly, operators must choose the most appropriate methods for evaluating program effectiveness. As noted in Section 8.4.2 of API RP 1162, an operator may choose to participate in and use the results of surveys performed by others to evaluate the effectiveness of its program. The operator is cautioned that surveys performed by others must allow the operator to demonstrate results relevant to the operator's own facilities and public awareness program. 3. Implementation Several commenters noted that operators should be allowed from one to two years following publication of the Final Rule to develop and implement public education programs to meet the rule requirements. Some stated this time would be necessary for operators to ensure programs are fully compliant with the new regulation and to develop a schedule for implementation consistent with their annual budget cycles. Response Operators should have in place some level of existing public awareness/education programs under current regulations requiring operators to conduct damage prevention programs (Sec. 192.614 and Sec. 195.442), to establish emergency plans and maintain liaison with emergency officials (Sec. 192.615 and Sec. 195.402), and to conduct public [[Page 28839]] education programs (Sec. 192.616 and Sec. 195.440). However, PHMSA recognizes that the additional efforts necessary to evaluate and further develop those programs, (consistent with this rule and the guidance provided in API RP 1162), and the efforts necessary to begin implementation of the enhanced programs, may take longer for some operators than others. Accordingly, operators must be prepared to submit for review their completed programs to the Secretary of Transportation or, in the case of an intrastate pipeline facility operator, the appropriate State agency, no later than 12 months following the publication date of the rule. As an exception, operators of small liquid propane distribution systems having less than 25 customers and master meter operators having less than 25 customers must be prepared to submit their completed programs to the appropriate regulatory agency for review no later than 24 months following the publication date of the rule. PHMSA encourages electronic submission of operator programs. Specific guidance regarding the exact timing and procedures for such submission will be provided in a future regulatory notice. Operator program documentation and evaluation results must be available for periodic review by appropriate regulatory agencies. 4. Evaluation Frequency Several commenters noted that the rule should specify the frequency by which operators are required to evaluate their public awareness programs for effectiveness. The Washington Utilities and Transportation Commission (WUTC) considered that it is important in the early stages of implementing improved public education programs that operators conduct effectiveness reviews at least every two years, if not annually. WUTC noted that only by emphasizing results could the fle
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