[Federal Register Volume 62, Number 223 (Wednesday, November 19, 1997)]
[Rules and Regulations]
[Pages 61695-61700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30290]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 192 and 195
[Docket No. PS-101A, Amdt. 192-82 , 195-60]
RIN 2137-AC 57
Mandatory Participation in Qualified One-Call Systems by Pipeline
Operators
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule requires that operators of onshore gas,
hazardous liquid, and carbon dioxide pipelines participate in qualified
one-call systems as part of the required excavation damage prevention
programs. The rule also limits the current exclusion of certain small
gas systems from compliance with the damage prevention program
requirements. This final rule is intended to reduce excavation damage,
the largest single cause of pipeline failures.
EFFECTIVE DATE: This final rule takes effect May 18, 1998.
[[Page 61696]]
FOR FURTHER INFORMATION CONTACT: Christina Sames by telephone at (202)
366-4561 or through the Internet at [email protected], about
this document, or the Dockets Unit at (202) 366-5046, for copies of
this document or other material in the docket.
SUPPLEMENTARY INFORMATION:
One-Call Systems
A one-call system is a communication system established
individually or jointly by utilities, government agencies, or other
operators of underground facilities to provide a single telephone
number (other methods of communication are also used) for excavators
and the public to call to notify participating members of their intent
to excavate. The one-call systems receive the excavation notices and
transmit them to operators of underground pipeline facilities and other
underground facilities that participate in the system.
Upon receipt of the excavation notices, participating operators
that have underground facilities in the vicinity of the excavation
arrange for the timely identification and temporary marking of
underground facilities. In addition, underground operators may inspect
the site during the excavation activities to ensure the safety of their
underground facilities.
National One-Call Campaign and the Damage Prevention Quality Action
Team
There are now 75 one-call systems operating in 49 states and the
District of Columbia. Not all of the operating one-call systems meet
the qualifications for a ``one-call notification system,'' as defined
in 49 CFR 198.39. Hawaii and Puerto Rico are currently without a one-
call system.
Forty-seven states and the District of Columbia have damage
prevention laws that, to varying degrees, govern the activities
performed by excavators and persons locating and temporarily marking
underground facilities. However, most of the existing state damage
prevention programs do not meet all of the requirements of Sec. 198.37,
``State one-call damage prevention program.''
To address the problem of incomplete national one-call coverage and
the deficiencies in some existing one-call systems, RSPA has launched a
national campaign to encourage states to adopt improved one-call
notification systems. The national campaign targets states for
concentrated outreach to assist their efforts to upgrade current one-
call systems. The campaign focuses on mandatory operator participation,
mandatory excavator participation, State-wide coverage, and civil
penalty enforcement. The national campaign also works with selected
states currently without one-call legislation or those which need to
strengthen existing legislation.
RSPA has also formed a Damage Prevention Quality Action Team to
address third party damage to underground facilities including
pipelines. The Team includes representatives from RSPA, the natural gas
and hazardous liquid pipeline industry, the telecommunications
industry, States, one-call centers, and the insurance and contracting
industries. The Team is evaluating existing damage prevention education
campaigns and will design and implement a national public education
campaign to reduce third party damage.
Rulemaking Proposal (Docket No. PS-101A)
On March 20, 1995, RSPA issued a notice of proposed rulemaking
(NPRM) titled ``Mandatory Participation in Qualified One-Call Systems
by Pipeline Operators'' (60 FR 14714). The NPRM proposed to remove the
option in Secs. 192.614(a) and 195.442(a) that permits a pipeline
operator to receive and record notification of planned excavation
activities rather than to participate in a qualified one-call system
covering the area where the operator's pipeline is located.
The NPRM proposed to require that pipeline operators only
participate in qualified one-call systems. A one-call system would be
considered qualified if the state had adopted a one-call damage
prevention program in compliance with Sec. 198.37. A one-call system
would also be considered qualified if it operates in accordance with
Sec. 198.39, provides a pipeline operator the same opportunity to
participate in one-call system management that is offered to other
owners of underground facilities, and assesses a participating pipeline
operator a fee that is proportionate to the service provided by the
one-call system.
The NPRM also proposed to extend the excavation damage prevention
program requirements to petroleum gas systems subject to Sec. 192.11
and to small gas systems whose primary activity includes the
transportation of gas.
The NPRM proposed to limit the current exemption for operators of
gas systems, including operators of master meter systems, whose primary
activity does not include the transportation of gas. RSPA is sensitive
to the minimum resources of these small operators and proposed that
small operators be exempted from identifying excavators in the vicinity
of the pipeline. RSPA also proposed that small operators be exempted
from notifying excavators of the damage prevention program's existence
and purpose and on how to learn the location of underground pipelines
before excavation activities begin. In addition, RSPA proposed that
these small operators be exempted from the requirement for a written
damage prevention program. These operators would still be required to
provide a means of receiving and recording notification of planned
excavation activities, to provide for notification of persons who give
notice of an intent to excavate of the type of temporary marking to be
used and how to identify the markings, to provide for temporary marking
of buried pipelines in the area of excavation activity before, as far
as practical, the activity begins, and to provide for the inspection of
pipelines that the operator has reason to believe could be damaged by
excavation activities.
Under the proposed regulation, pipeline operators would continue to
receive and record the notification of planned excavation activities
using their own personnel in areas where one-call systems are not yet
established, or where a qualified one-call system is not yet in place.
However, operators would be required to join a qualified one-call
system once it was established.
Comments to the NPRM
RSPA received sixteen comments in response to the NPRM. These
commenters represented natural gas and hazardous liquid pipeline
operators, industry trade associations, and government agencies.
All sixteen commenters voiced general support for the NPRM. Among
those in support, a state pipeline safety agency commented that many
states have already instituted mandatory one-call membership for
regulated intrastate underground facility operators.
The majority of the commenters also voiced a general opinion that
all underground facility operators and all excavators should be
required to participate in a qualified one-call system. Commenters
recognized that RSPA can only require regulated pipeline operators to
participate in qualified one-call systems and supported RSPA's current
initiative to encourage all underground facility operators and all
excavators to participate in a qualified one-call system. One commenter
also supported RSPA's reduction of state grants to states that do not
establish mandatory
[[Page 61697]]
participation for all underground utilities and excavators.
One commenter recommended clarification of the proposed language in
Sec. 192.614(e) to ensure that municipal gas systems are included in
the damage prevention regulations. The commenter stated that the
proposed wording could be interpreted to exclude municipal gas systems
from certain damage prevention regulations. Municipal gas systems are
currently required to have a damage prevention program, and RSPA has
clarified the language in this final rule to prevent misinterpretation.
Another commenter suggested that RSPA clarify that operators are
not precluded from receiving calls directly from individuals on
activities near a pipeline. Certain pipelines are required to be marked
with line markers that show the location of that pipeline. These line
markers list the operator and a telephone number for individuals to
call to receive or transmit information on the pipeline. RSPA agrees
that a pipeline operator should be allowed to receive information
directly from individuals on activities near the operator's pipeline.
This final rule does not preclude that from occurring.
Other recommended changes to the NPRM focused on the problem of
overlapping one-call service areas, and the terms ``disproportionate
cost'' and ``coverage.'' These recommended changes are discussed below.
Comments on Overlapping One-Call Service Areas
There are limited areas of the United States, primarily in the
northwest and in the state of Texas, where more than one one-call
system covers the same service area. In areas of overlapping one-call
coverage, excavators may need to call several one-call systems to
ensure that all underground utilities are informed of excavation
activities. In addition, underground utility operators may need to join
several one-call systems to ensure that they are informed of all
excavation activities near the pipeline. These problems are alleviated
if the state has a central telephone number for excavators to call for
excavation activities, or if the one-call systems in the areas of
overlapping coverage communicate with one another.
Three commenters and an industry trade association stated that
operators should not be required to join more than a single qualified
one-call system for a given area. One commenter stated that if an
excavator is required to make more than one call, there is no true one-
call system. Two commenters thought the NPRM might prolong the problem
by providing captive participation and funding for redundant systems.
In addition, the commenters thought that captive participation and
funding might create an incentive for the establishment of multiple
qualified one-call systems in a given area, thus reducing the one-call
system effectiveness.
RSPA does not agree that multiple one-calls will be created for the
same coverage area, or that the current problem of overlapping coverage
will be prolonged, if an operator is required to join all qualified
one-call centers that cover the operator's pipeline system. RSPA bases
this on the fact that the number of states mandating one-call
membership has been increasing while the problem of overlapping
coverage has been decreasing. If the problem of overlapping one-call
coverage were to increase with mandatory participation, as the
commenters suggested, it should have already occurred in the states
mandating one-call participation. This has not happened.
RSPA does not see the need for an operator to join more than one
qualified one-call system in overlapping coverage areas, if there is a
central telephone number for excavators to call for excavation
activities, or if the one-call systems in those areas communicate with
one another. A central telephone number can forward an intent to
excavate to multiple one-call systems. This allows an operator to join
a single one-call system and still receive all notices of intent to
excavate that may affect the operator's pipeline. One-call systems that
communicate notices of intent to excavate to other one-call systems
also allow an operator to join a single one-call system and still
receive all notices of intent to excavate that may affect the pipeline.
Both situations end the need for an operator to join several one-call
systems in areas of overlapping coverage.
States that have overlapping one-call coverage are actively working
to alleviate the problem. As an example, Texas has recently passed
legislation that will create a central number for excavators to call.
In addition, several of the states in the northwest that have small
areas of overlapping coverage are currently referring excavators to a
central number. Both alleviate the need for an operator to join more
than a single one-call system covering its pipeline.
Disproportionate Cost and Coverage
The NPRM proposed that pipeline operators join a one-call system
that ``assesses a participating pipeline operator a fee that is not
disproportionate to the costs of the one-call system's coverage of the
operator's pipeline.'' Two commenters recommended modifying the
proposed section to read ``Assesses a participating pipeline operator a
fee that is proportionate to the operator's utilization of the one-call
service.'' RSPA has modified the proposed regulation in response to
these recommendations.
Additional Concerns on State Jurisdiction
A state pipeline safety agency raised concern about a state's
ability to impose one-call requirements on interstate pipeline
operators. This rule should allay any concern about an interstate
operator's required compliance with one-call damage prevention
notification and marking requirements. Although a state cannot impose
pipeline safety standards on an interstate operator, RSPA urges
interstate operators to comply with any other requirements a one-call
system imposes as a condition of membership.
Presentation to Advisory Committees
On November 8 and 9, 1995, RSPA presented the NPRM and the comments
received on the NPRM to its two pipeline advisory committees, the
Technical Pipeline Safety Standards Committee (TPSSC) and the Technical
Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC).
On November 8, 1995, the THLPSSC discussed and unanimously
supported mandating pipeline operator participation in qualified one-
call systems with one minor modification to the wording used in the
NPRM. The THLPSSC recommended that RSPA modify Sec. 195.442(b)(2)(iii)
to remove the double negative. The suggested wording reads ``Assesses a
participating pipeline operator a fee that is proportionate to the
costs of the one-call system's coverage of the operator's pipeline.''
The THLPSSC also discussed the problem of overlapping one-call
coverage and the possible actions that could be taken in these areas.
The THLPSSC discussed requiring a pipeline operator to only join one
qualified one-call system in areas of overlapping one-call coverage, on
the condition that the operator's entire system in the overlapping area
be covered by the single one-call system.
RSPA has studied the possible consequences of this action and
believes there is a safety issue. If an operator joins a single one-
call system in an overlapping coverage area, an excavator could call
the one-call system the operator has not joined. The excavator may not
understand that another call has to be made to obtain the location of
[[Page 61698]]
additional underground facilities covered by the other one-call system.
The excavator may believe it is safe to dig in the area when, in fact,
there is a pipeline or other underground utility in the area. This
could lead to a hazardous liquid release, explosion, or possible death.
Therefore, RSPA will not pursue this action.
On November 9, 1995, the TPSSC voted six to five in favor of the
proposed regulation and several modifications. Those opposed were
concerned with the recommendation to modify Sec. 198.39, made by other
committee members, and not with the overall intent of the NPRM. This
recommendation is discussed below in further detail.
The TPSSC recommended that pipeline operators only participate in
one qualified one-call system in areas of overlapping one-call
coverage. In conjunction with that recommendation, the TPSSC proposed
that RSPA modify, through a new NPRM, Sec. 198.39, ``Qualifications for
operation of one-call notification system.'' The proposed modification
would require a one-call system to communicate with all other one-call
systems in areas of overlapping coverage before that one-call system
could be considered qualified.
The TPSSC recommended that the modification to Sec. 198.39 be done
in conjunction with the requirement that pipeline operators need only
join one qualified one-call system in areas of overlapping
jurisdiction. The TPSSC recognized that RSPA could not modify part 198
in this final rule and some members were concerned that implementing
the actions at different times would cause undue problems. Their six to
five vote reflects these concerns.
The TPSSC also followed the THLPSSC's recommended modification of
Sec. 195.442(b)(2)(iii) by unanimously concurring that
Sec. 192.614(b)(2)(iii) be modified to remove the double negative. The
recommended wording would read ``Assesses a participating pipeline
operator a fee that is proportionate to the costs of the one-call
system's coverage of the operator's pipeline.''
Amendments
RSPA has adopted the TPSSC's and THLPSSC's recommended wording of
Secs. 192.614(b)(2)(iii) and 195.442(b)(2)(iii) and has removed the
double negative. RSPA has also clarified Sec. 192.614(e) to ensure that
municipal gas systems are included in the damage prevention
regulations.
RSPA has not adopted the recommendation to require pipeline
operators to participate in only one qualified one-call system in areas
of overlapping one-call coverage. RSPA has not adopted this
recommendation due to the possible safety issues. However, RSPA does
not see the need for a pipeline operator to join more than a single
one-call system if there is a central telephone number for excavators
to call, or if the one-call systems in the overlapping coverage area
communicate with each other. RSPA is taking into consideration the
TPSSC's recommendation to modify Sec. 198.37 to require one-call
systems to communicate with one another in areas of overlapping one-
call coverage before they are considered a qualified one-call system. A
new NPRM will be issued if RSPA pursues the recommendation.
Rulemaking Analyses
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
subject to review by the Office of Management and Budget. The final
rule is also not considered significant under the Regulatory Policies
and Procedures of the Department of Transportation (44 FR 11034).
The final rule requires that operators of interstate and intrastate
pipelines participate in qualified one-call systems. It requires less
stringent standards for participation of small entities, including
master meter operators, whose primary activity does not include the
transportation of gas.
Presently, approximately 75 one-call systems operate in 49 states
and the District of Columbia. These one-call systems perform many of
the duties required under parts 192 and 195 for an excavation damage
prevention program. Many pipeline operators already participate in
these one-call systems on a voluntary or state-mandated basis.
Forty-seven states and the District of Columbia have damage
prevention laws that, to varying degrees, govern the activities
performed by excavators and persons locating and temporarily marking
underground facilities. Twenty-eight states and the District of
Columbia mandate one-call participation by most commercial underground
facility owners and operators. Therefore, many of the operators that
this final rule covers already have some form of an excavation damage
prevention program and should incur little or no additional cost as a
result of this final rule.
Based on available data and discussions with the American Gas
Association, the American Public Works Association, and One-Call
Systems International, the cost for a pipeline operator to participate
in a qualified one-call system should be approximately the same or
slightly less than if the operator performed the excavation damage
prevention duties independently. Therefore, operators that are required
to meet the current damage prevention program requirements, but who
have not joined a qualified one-call system, should incur little or no
additional cost.
Operators in areas with no qualified one-call systems would
continue to receive and record notifications of planned excavation
activities with their own personnel and would incur no additional cost.
However, operators would be required to join a qualified one-call
system once one was established.
49 U.S.C. 60102(b)(3) requires RSPA's technical advisory committees
to serve as peer review panels for the cost/benefit analysis that
accompanies each rulemaking. The THLPSSC and the TPSSC have reviewed
the cost/benefit information contained in this final rule and three-
fourths of the members have voted to forego a formal analysis and
report on the merits of the data, the methods used in the cost/benefit
analysis, and any recommended options relating to the cost/benefit
analysis.
Based on the above, this rule is not considered to be significant
under Executive Order 12866. A complete text of the regulatory
evaluation is available for review in this docket.
Executive Order 12612
The final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism''), and does not
have sufficient federalism impacts to warrant the preparation of a
federalism assessment.
Unfunded Mandates Reform Act of 1995
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs or $100
million or more to either State, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective to the rule.
Regulatory Flexibility Act
This final rule extends the excavation damage prevention program
requirements to petroleum gas systems subject to Sec. 192.11 and to
small gas systems whose primary activity includes the transportation of
gas. It also limits the current exemption for
[[Page 61699]]
operators of gas systems whose primary activity does not include the
transportation of gas. However, the final rule is sensitive to the
minimum resources of these small operators.
Operators whose primary activity does not include the
transportation of gas, such as master meter operators, are exempted
from the requirement that the damage prevention program be written.
This is one of the most costly parts of this regulation. These
operators are exempted from the requirements to identify persons who
normally engage in excavation activities in the area in which the
pipeline is located, and to provide actual notification to those
identified persons on the damage prevention program's existence and
purpose and on how to learn the location of underground pipelines
before excavation activities begin. Because little excavation activity
occurs in areas where master meter operators operate, the cost of
joining a one-call system for these small operators should be minimal.
Based on these facts, I certify that this final rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This certification is subject to modification as a
result of a review of comments received in response to this final rule.
Paperwork Reduction Act
This final rule will require no additional increase in the current
information collection burden requirements for gas pipeline operators
and hazardous liquid and carbon dioxide operators. Twenty-eight states
and the District of Columbia mandate one-call participation by most
commercial underground facility owners and operators. In addition, many
operators already voluntarily participate in qualified one-call
systems. Therefore, many of the operators that this final rule covers
already participate in qualified one-call systems and should incur no
additional paperwork burden as a result of this final rule.
Based on available data and discussions with One-Call Systems
International, the paperwork burden for a pipeline operator to
participate in a qualified one-call system should be less than if the
operator performed the excavation damage prevention duties
independently. Therefore, operators that are required to meet the
current damage prevention program requirements, but who have not joined
a qualified one-call system, should incur little or no additional
paperwork burden.
Operators in areas with no qualified one-call systems would
continue to receive and record notifications of planned excavation
activities with their own personnel and would incur no additional
paperwork burden as a result of this final rule.
List of Subjects
49 CFR Part 192
Pipeline safety, Reporting and recordkeeping requirements.
49 CFR Part 195
Anhydrous ammonia, Carbon dioxide, Petroleum, Pipeline safety,
Reporting and recordkeeping requirements.
In consideration of the foregoing, RSPA amends 49 CFR parts 192 and
195 as follows:
PART 192--[AMENDED]
1. The authority citation for part 192 continues to read as
follows:
Authority: 49 U.S.C. 5102, 60102, 60104, 60108, 60109, 60110,
60113, 60118; 49 CFR 1.53.
2. Section 192.614 is amended by revising paragraph (a), by
removing paragraph (c)(4), by redesignating paragraphs (b) and (c) as
(c) and (d), by revising the introductory text of newly redesignated
(c)(2), and by adding paragraphs (b) and (e) as follows:
Sec. 192.614 Damage prevention program.
(a) Except as provided in paragraphs (d) and (e) of this section,
each operator of a buried pipeline must carry out, in accordance with
this section, a written program to prevent damage to that pipeline from
excavation activities. For the purpose of this section, the term
``excavation activities'' includes excavation, blasting, boring,
tunneling, backfilling, the removal of aboveground structures by either
explosive or mechanical means, and other earthmoving operations.
(b) An operator may comply with any of the requirements of
paragraph (c) of this section through participation in a public service
program, such as a one-call system, but such participation does not
relieve the operator of responsibility for compliance with this
section. However, an operator must perform the duties of paragraph
(c)(3) of this section through participation in a one-call system, if
that one-call system is a qualified one-call system. In areas that are
covered by more than one qualified one-call system, an operator need
only join one of the qualified one-call systems if there is a central
telephone number for excavators to call for excavation activities, or
if the one-call systems in those areas communicate with one another. An
operator's pipeline system must be covered by a qualified one-call
system where there is one in place. For the purpose of this section, a
one-call system is considered a ``qualified one-call system'' if it
meets the requirements of section (b)(1) or (b)(2) of this section.
(1) The state has adopted a one-call damage prevention program
under Sec. 198.37 of this chapter; or
(2) The one-call system:
(i) Is operated in accordance with Sec. 198.39 of this chapter;
(ii) Provides a pipeline operator an opportunity similar to a
voluntary participant to have a part in management responsibilities;
and
(iii) Assesses a participating pipeline operator a fee that is
proportionate to the costs of the one-call system's coverage of the
operator's pipeline.
(c) * * *
(2) Provides for notification of the public in the vicinity of the
pipeline and actual notification of the persons identified in paragraph
(c)(1) of this section of the following as often as needed to make them
aware of the damage prevention program:
* * * * *
(e) Pipelines operated by persons other than municipalities
(including operators of master meters) whose primary activity does not
include the transportation of gas need not comply with the following:
(1) The requirement of paragraph (a) of this section that the
damage prevention program be written; and
(2) The requirements of paragraphs (c)(1) and (c)(2) of this
section.
PART 195--[AMENDED]
3. The authority citation for part 195 continues to read as
follows:
Authority: 49 U.S.C. 60102, 60104, 60108, 60109; 49 CFR 1.53.
4. Section 195.442 is amended by revising paragraph (a), by
redesignating paragraphs (b) and (c) as (c) and (d), by revising the
introductory text of newly redesignated (c)(2), and adding paragraph
(b) to read as follows:
Sec. 195.442 Damage prevention program.
(a) Except as provided in paragraph (d) of this section, each
operator of a buried pipeline must carry out, in accordance with this
section, a written program to prevent damage to that pipeline from
excavation activities. For the purpose of this section, the term
``excavation activities'' includes excavation, blasting, boring,
tunneling, backfilling, the removal of aboveground structures by either
explosive or mechanical means, and other earthmoving operations.
[[Page 61700]]
(b) An operator may comply with any of the requirements of
paragraph (c) of this section through participation in a public service
program, such as a one-call system, but such participation does not
relieve the operator of responsibility for compliance with this
section. However, an operator must perform the duties of paragraph
(c)(3) of this section through participation in a one-call system, if
that one-call system is a qualified one-call system. In areas that are
covered by more than one qualified one-call system, an operator need
only join one of the qualified one-call systems if there is a central
telephone number for excavators to call for excavation activities, or
if the one-call systems in those areas communicate with one another. An
operator's pipeline system must be covered by a qualified one-call
system where there is one in place. For the purposes of this section, a
one-call system is considered a ``qualified one-call system'' if it
meets the requirements of section (b)(1) or (b)(2) or this section.
(1) The state has adopted a one-call damage prevention program
under Sec. 198.37 of this chapter; or
(2) The one-call system:
(i) Is operated in accordance with Sec. 198.39 of this chapter;
(ii) Provides a pipeline operator an opportunity similar to a
voluntary participant to have a part in management responsibilities;
and
(iii) Assesses a participating pipeline operator a fee that is
proportionate to the costs of the one-call system's coverage of the
operator's pipeline.
(c) * * *
(2) Provides for notification of the public in the vicinity of the
pipeline and actual notification of persons identified in paragraph
(c)(1) of this section of the following as often as needed to make them
aware of the damage prevention program:
* * * * *
Issued in Washington, D.C. on November 13, 1997.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 97-30290 Filed 11-18-97; 8:45 am]
BILLING CODE 4910-60-P