[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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