December 2021, Vol. 248, No. 12
Features
Implementation Struggles of PHMSA’s Fatigue Mitigation Regulations
By Whitney Vandiver, Compliance Specialist, NuGen Automation
Fatigue is one of a controller’s greatest threats. Despite restrictions that have transpired for monitoring and mitigating controller fatigue in the past decade, fatigue is not a new worry within the oil and gas industry.
The National Transportation Safety Board (NTSB) became aware of the danger of controller fatigue in the 1980s and made an official recommendation to the Department of Transportation (DOT) to expedite a study of contributing factors to fatigue, information to educate the industry, and suggestions to improve regulations for hours of service across the transportation industry.
Several years later in 1996, the NTSB investigated a pipeline rupture that released more than 23,000 barrels of fuel that killed more than 35,000 fish and aquatic wildlife. It was attributed to controller confusion brought on by fatigue, creating one of several incidents that led to the operator paying one of the largest EPA civil penalties in history.
Around the same time, the NTSB, after considering the DOT’s perspective toward fatigue, conducted a review of 10 years of DOT-reported transportation accidents, revealing that it had issued more than 70 recommendations pertaining to operator fatigue as a result of investigative findings.
Backed with these statistics and developing research in fatigue factors and cognitive performance, the NTSB once again made a recommendation in 1999. This time it was addressed to the newly branched Pipeline and Hazardous Materials Safety Administration (PHMSA), to assess the risk factors associated with the rotational schedule of pipeline controllers, including the establishment of a scientifically valid set of regulations regarding the shift work of many controllers.
PHMSA on Research
The effect was not immediate, because PHMSA began its own deliberations of how fatigue impacted controllers. In 2005, PHMSA publish ed a notice calling for participants for their Controller Certification Pilot Program (CCERT), which studied controller needs and behaviors to better inform them of appropriate recommendations.
The CCERT results, along with other research, led to PHMSA’s revision of the code of federal regulations (CFRs) and clarified the inherent need for guidance to mitigate controller fatigue for industry organizations such as the American Petroleum Institute (API). Four months later, PHMSA issued an advisory bulletin based on its research into contributing factors of fatigue and potential countermeasures for the oil and gas industry.
Work schedules, hours of service, control room environments, and training and education were among the primary areas of research. The results were combined with relevant studies of the same area.
The advisory provided guidance to operators regarding scheduling of controllers, how to reduce fatigue on the job, and how to promote fatigue management practices within the control room; however, being issued as an advisory set a tone within the industry that was not entirely understood.
The advisory was PHMSA’s effort to alert industry operators of known dangers brought on by fatigue; however, despite the research efforts put forth, the agency stalled its initial word on controller fatigue at the advisory level.
This meant that, while the agency was clearly giving guidance that it expected to be considered, the weight of enforcement was not as heavy as what operators know to come with today’s CFRs. No doubt the reservation in issuing regulations originated in the untamed territory of assisting operators with managing human factors, which was an unfamiliar concept in oil and gas regulation at the time.
API Takes Steps
PHMSA, however, did not stop its consideration of fatigue issues in control rooms and continued its research. In 2008, on the heels of API’s release of Recommended Practice 1168, it issued a notice of proposed rulemaking to revise existing CFRs to incorporate human factors in control room management (CRM).
In September 2008, API released Recommended Practice 1168, “Pipeline Control Room Management,” its first set of guidelines for control room best practices within the oil and gas industry.
Fatigue management within the control room is one of its four pipeline safety elements. This was not only a necessary development but one that had been a long time in the making. As the industry’s first non-government-driven publication addressing fatigue management, API 1168 assisted operators in breaking down the key areas of fatigue that require attention.
Expanding the four areas of management in PHMSA’s 2005 advisory to nine realms of focus, API 1168 emphasizes on-shift breaks, on-shift stimulation and exercise equipment availability, dedicated nap spaces, transportation options, and assistance in recognizing fatigue in controllers.
However, in much the same way that PHMSA’s advisory was guidance rather than rule, API recommended practices are recognized within the industry as best practices, but they do not inherently require compliance.
Revised CFRs
Similar to the 2005 PHMSA advisory, API 1168 gave basic guidance that operators needed to develop further for a consistent implementation strategy. Advising operators to provide occasional on-shift breaks to controllers was an obvious fatigue mitigation strategy, but who was to say how often was enough or how long was warranted?
Questions popped up more often than they were answered. The guidance was no doubt helpful in combatting potential fatigue, but more was needed.
After observing how operators responded to their recommendations, PHMSA released the final rule addressing CRM with human factor considerations in December 2009, making history with a legally enforceable regulation that focused on addressing such issues as they pertained to pipeline CRM.
The final rule was aimed at human factors and other areas of influence as they pertained to pipelines where controllers used SCADA systems for monitoring and control.
As a result, 49 CFR 195.446 and 192.631 address key areas of CRM, including the following:
Roles and responsibilities for controllers
- Adequate information to controllers
- Fatigue mitigation
- Alarm management
- Change management
- Operating experience
- Training
- Compliance validation
- Compliance and deviations
By identifying the primary areas of concern, PHMSA created a framework for CRM programs that guided operators’ processes, established baseline procedures, and developed the reference point for industry improvements within the control room.
Moreover, PHMSA referenced industry documents that had proven to be useful in the development of CRM practices, including API Recommended Practices 1165 and 1168, thereby tying together existing recommendations and new regulation requirements.
This unparalleled move made the consideration and evaluation of and response to controller fatigue a requirement for all operators using a SCADA system.
The original implementation dates for 49 CFR 195.446 and 192.631 varied depending on the area of focus, with the fatigue mitigation implementation deadline originally stated as Feb. 1, 2012. However, after concerns were raised by operators regarding the necessary steps and training, a February 2010 correction amended the date to provide operators more time to implement the requirements.
In its approved form, 49 CFR 195.446 and 192.631 provided 18 months for development of programs to meet the regulations, which were due Aug. 1, 2011, and an additional 18 months for implementation, by Feb. 1, 2013. Operators had nearly three years to implement the new requirements.
However, discussion within PHMSA led to the realization that, as operators developed their programs for the Aug. 1, 2011, deadline, they would be meeting a large portion of the implementation requirements at the same time.
As a result, in September 2010, PHMSA determined that the additional 18 months for implementation was unnecessarily long. In an effort “to realize the safety benefit to the public, property and the environment sooner,” PHMSA proposed that the implementation deadlines be accelerated.
While some areas of implementation would be advanced by only a few months, several sections now faced an implementation deadline more than a year sooner than originally planned.
The industry reeled as operators assessed what was required to implement requirements by the new proposed deadlines. Several factors were brought up regarding fatigue management, including a restricted set of available resources for fatigue training, altered schedules that met fatigue guidelines requiring the hiring and training of additional personnel, and a short supply of fatigue experts for third-party assistance as operators strived to be compliant.
Despite arguments from operators throughout the industry, PHMSA was adamant in accelerating the rule’s implementation. In June 2011, an amended final rule was published that changed the implementation deadline for every section of the final rule.
As a result, fatigue mitigation was split into two deadlines. Education and training faced a new deadline of Oct. 1, 2011, and schedules and hours of service were provided an additional 10 months at Aug. 1, 2012. The final rule was now required to be implemented in its entirety by Aug. 1, 2012.
Indirect Regulation
PHMSA’s accelerated deadlines posed more than a time issue. One of many concerns voiced by operators was the vague instruction provided by the regulations.
PHMSA, as with other industry organizations, understands that not all operators are created equal. The size of an operator often affects various factors, such as available funding and resources, the number of affected operations, and available personnel. With this in mind, PHMSA has made an art of providing specific guidance without clearly stating what must be done.
In other words, PHMSA regulations often state what operators must achieve but do not tell the operators exactly how they must accomplish it. This method of wording grants flexibility to operators so they are not tied into particular solutions that risk overtaking their budgets or affecting their operations more than is necessary.
While many operators greatly appreciate this consideration, the downside is that operators are left to their own devices when it comes to figuring out the best way to go about meeting compliance.
Operators understand that they must “establish shift lengths and schedule rotations that provide controllers off-duty time sufficient to achieve eight hours of continuous sleep,” but how to accomplish that objective is entirely up to them. This is why operators can utilize any controller schedule they want as long as it allows controllers the required opportunity to sleep, leading to various versions throughout the industry, such as duPont or the rarer 7-On/7-Off schedule.
However, as operators have discovered and PHMSA has begun to address, there are multiple factors that affect fatigue and that have a direct impact on how well operators’ solutions work when it comes to preventing potential or combatting existing fatigue. As the industry has learned, there is rarely – if ever – a perfect solution.
Moreover, when it comes to its CRM regulations, PHMSA can be overly cautious. As any operator who has experienced an audit can attest, there are many more requirements than simply implementing the four methods outlined in the regulations. As operators began implementing the regulations, they naturally had questions regarding clarification of certain situations or how to apply the methods correctly.
As early as June 2011, PHMSA realized that its regulations were not providing enough of a framework for operators, but the agency was against providing too much specification.
As a compromise, PHMSA released the first of an occasionally updated collection of questions relating specifically to its CRM regulations – and this document had a profound impact on how CRM regulations, specifically fatigue methods, have been implemented.
While the regulations outline that operators must provider controllers with sufficient time to sleep for eight solid hours, it is only through what PHMSA terms the Control Room Management Frequently Asked Questions (FAQ) that operators learn that PHMSA’s expectation is that they take a controller’s commute time into consideration, with the recommendation that they add two hours to the eight-hour break between shifts.
Likewise, it is only through this document, which is not considered part of the legal CFRs, that operators come to learn that PHMSA expects a controller’s workday to start no later than 6 a.m., a controller to work no more than 65 hours in a seven-day period, and controllers to receive 35 hours of continuous hours of off-duty time after working five 12-hour shifts in a seven-day period.
Third-Party Solutions
Despite not being included as part of the regulations, the expectations outlined in the FAQs might as well be considered required when it comes to operators working to be compliant. Operators who neglect to meet these expectations are likely to be told by PHMSA that their fatigue program is not compliant and will be required to implement measures to achieve each expectation.
It is easy to understand PHMSA’s state of mind in not wanting to overcomplicate the CFRs, especially given how human factors can create such inconsistent conditions and result in an environment as variable as pipeline operations.
However, when PHMSA issued their first version of their FAQs for the CRM regulations, it entered a time of indirect regulation – supplemental guidance that fails to present itself for what it is. When it comes to fatigue compliance, many operators have expressed how complicated this can make the process for them to understand where they stand.
Origins of PHMSA’s groundbreaking fatigue management regulations are rooted in the industry’s need for research and guidance, and their history shows the evolution that the regulations have undergone as the industry has grown and advanced technology has become standard.
Regardless of these efforts, however, PHMSA’s fatigue management regulations have failed to fully meet operator needs by neglecting to clearly address what is and is not required for compliance and adding to the burden of understanding through indirect regulation.
As a result, many operators have begun seeking solutions to assist with CRM compliance, leading to the growing trend among operators of using third-party providers with expertise in interpretation and application of PHMSA compliance, especially regarding fatigue management.
This option allows operators to maximize the benefits of a provider’s experience with understanding PHMSA’s expectations and knowledge of available methods of maintaining compliance.
Often, third-party compliance providers also assist with documentation and related procedures and usually can reduce operators’ costs in the process, presenting operators with a solution that alleviates the pressure of interpreting PHMSA’s fatigue management regulations and FAQs.
Author: Whitney Vandiver specializes in control room management compliance and assists operators with state and federal CRM audits at NuGen Automation. She previously worked for a pipeline operating company in compliance-driven documentation and served as a volunteer editor for the drafting of API MPMS 18.2. She holds a bachelor’s degree from the University of Central Oklahoma and a master’s degree and Ph.D., both in linguistics, from Purdue University.
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