[Congressional Record Volume 143, Number 152 (Tuesday, November 4, 1997)]
[Senate]
[Pages S11630-S11631]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ONE-CALL NOTIFICATION PROVISIONS
Mr. FAIRCLOTH. I would like to clarify the intent of the Commerce
Committee's ISTEA transportation safety amendment as it relates to
State one-call--call-before-you-dig--programs. It is my understanding
that the one-call provisions of this amendment are the same as the
provisions of S. 1115, the Comprehensive One-Call Notification Act of
1997.
Mr. LOTT. The Senator is correct. The minority leader and I
introduced as S. 1115 on July 31. Thirteen of our colleagues have
joined us as cosponsors to the bill, and the Committee on Commerce,
Science, and Transportation held a hearing on the bill on September
[[Page S11631]]
17. I will be happy to respond to the Senator's questions.
Mr. FAIRCLOTH. I have received a number of calls and letters from
North Carolina contractors concerned about this bill and its inclusion
in ISTEA. As the leader knows, these companies are overwhelmingly small
businesses, and they provide a large number of jobs for people in our
States. However, when they think of the Federal Government and its
regulators, they think of the Occupational Safety and Health
Administration. Their experience with OSHA has not been good. The
contractors are definitely not interested in seeing a toehold
established for further regulation of this type under the guise of one-
call notification. Can the leader tell me that the provisions we are
talking about here will not be converted into a Federal regulatory
program effecting small business?
Mr. LOTT. I can assure the Senator, most emphatically, that this will
not happen. This is not a regulatory bill. The Lott-Daschle bill
presumes that each State provides the legislative foundation for the
one-call notification program in that State. Remember, all one-call
programs are currently State programs, and this will remain unchanged.
The sole aim of the bill is to encourage States to act voluntarily to
improve their own State one-call programs by providing fiscal
assistance for those States who want to do more.
Furthermore, this legislation does not regulate through the back door
by imposing a Federal mandate on the States to modify their existing
one-call programs. Rather, it makes funding available to improve these
programs. To be eligible for the funding, the programs must meet
certain minimum standards, but even those standards are performance-
based, not prescriptive. And States will be involved in the rulemaking
which establishes these standards. No State has to apply for these
funds if it doesn't wish to.
The bill does not preempt State law. Let me repeat that; no State law
will be preempted. States continue to their responsibility for the
regulations for notification prior to excavation and for location and
for marking of underground facilities. Nothing in this bill changes
this. States prescribe the details of one-call notification programs.
This not something the Federal Government should do or is able to do
effectively.
This bill is not intended to lead to a Federal regulatory program on
the backs of small business. It is not intended to do this, and it will
not do this.
Mr. FAIRCLOTH. I thank leader for that assurance.
Among the minimum standards required for a one-call notification
program to be eligible for Federal assistance is the requirement for
``appropriate participation'' by all excavators and underground
facility operators. ``Appropriate participation'' would be determined
based on the ``risks to public safety, the environment, excavators and
vital public services.''
Contractors who visited my office see this as a loophole that could
actually weaken State programs. The contractors are very concerned that
the Federal Government would declare some situations to be low risk,
and this would in turn encourage facility operators to seek exemptions
from one-call requirements because their participation would be deemed
no longer ``appropriate''.
Mr. LOTT. First, let me say to my colleague that I am very much in
favor of encouraging Federal and State agencies put regulatory effort
where the real risks are. We don't have so much money and so much
desire to regulate that we can afford to spend our time and money
regulating nonexistent risks. There is far too much regulating of
fictitious risks going on in our economy today. So I think the emphasis
on looking at actual risk is desirable. And the other side of it is
that situations that pose a real risk should be covered, absolutely
should be covered. We think the Lott-Daschle bill will encourage the
States to look at risks that are not now covered and increase
participation in one-call notification programs accordingly.
In answer to the contractors' contention, I would reply to them that
the intent of this bill is to strengthen State one-call programs and
not to weaken them. This is what the Congress is saying to the States
with the Lott-Daschle bill: ``Strengthen your programs. Strengthen your
programs, and you will be rewarded.''
And the Department of Transportation, which will administer this
program, is saying the same thing. I recently received a letter from
Secretary of Transportation Rodney E. Slater supporting the Lott-
Daschle one-call notification bill. I put that letter in the Record of
October 22. In his letter, Secretary Slater says, ``safety is the
Department of Transportation's highest priority.''
Secretary Slater is not interested in weakening State one-call
notification programs. A State that submits a grant application to the
Department of Transportation with a weakened State one-call program is
not going to see that application approved. The Department of
Transportation will make sure of that.
Finally, the Lott-Daschle bill does not provide for a one-size-fits-
all Federal determination of what constitutes a risk. Under the bill
the intent is that the determination of risk will be made at the State
level, where local conditions and practices can be taken into account.
This is another reason that I'm sure we don't need to be concerned
about weakening State laws. States with strong laws are not going to
undertake to weaken them in order to apply for a grant from the DOT
under this bill. They know that DOT is trying to strengthen these laws.
It just wouldn't make any sense.
A State which successfully confronted special interests and enacted a
strong one-call program would be both unlikely and foolish to try to
use this bill to weaken these programs. If a State were that misguided,
the DOT is certain to reject their application.
This bill will mean stronger State one-call notification laws, more
participation and better enforcement. That's why 15 Senators want to
advance this legislation.
Mr. FAIRCLOTH. The contractors who visited my office felt that the
bill is a dagger pointing at them, and that it unfairly singles out
excavators as the cause of accidents at underground facilities. Can the
bill be made more evenhanded?
Mr. LOTT. I believe the bill does attempt to be evenhanded. For
example, finding (2) of the bill points to excavation without prior
notice as a cause of accidents, but in the same phrase it includes
failure to mark the location of underground facilities in an accurate
or timely way as a cause as well. In truth, these are both causes of
accidents, and the bill proposes to deal with both.
Both excavators and underground facilities can stand to improve
performance in the area of compliance with one-call requirements. There
is no intent in this bill to blame one side or the other. If the
Senator believes that the bill unfairly stigmatizes contractors, I
would want to right the balance, because that is not what is intended.
What we are trying to do is to set up a process where the States can
address problems we all know are there. There are too many accidents at
underground facilities. Let's see what we can do to improve that
situation. Let's see what we can do cooperatively, underground facility
operators and contractors, Federal agencies and State agencies. Let's
use incentives rather than preemption and regulation. That is what this
bill is trying to do.
Mr. FAIRCLOTH. I thank the leader for these clarifications.
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