[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Proposed Rules]
[Pages 55797-55803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26099]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 190, 192, 195, and 198

[Docket No. PHMSA-2009-0192]
RIN 2137-AE43


Pipeline Safety: Pipeline Damage Prevention Programs

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
U.S. Department of Transportation (DOT).

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: This Advance Notice of Proposed Rulemaking (ANPRM) initiates a 
rulemaking procedure to establish criteria for determining adequate 
state enforcement of pipeline damage prevention laws. Under the 
Pipeline Inspection, Protection, Safety, and Enforcement (PIPES) Act of 
2006,

[[Page 55798]]

establishment of these criteria is a prerequisite should PHMSA find it 
necessary to conduct an enforcement proceeding against an excavator for 
violation of one-call damage prevention laws in the absence of 
enforcement action by the state where the events occurred. This notice 
is issued to solicit feedback and comments regarding the criteria and 
procedures PHMSA should use to determine if a state's enforcement of 
its damage prevention laws is adequate. These procedures will encourage 
states to develop effective excavation damage prevention enforcement 
programs to protect gas and hazardous liquid pipelines, but also allow 
federal enforcement authority should any state fail to do so.

DATES: Persons interested in submitting written comments on this ANPRM 
must do so by December 14, 2009. PHMSA will consider late filed 
comments so far as practicable.

ADDRESSES: Comments should reference Docket No. PHMSA-2009-0192 and may 
be submitted in the following ways:
     E-Gov Web Site: http://www.regulations.gov. This site 
allows the public to enter comments on any Federal Register notice 
issued by any agency.
     Fax: 1-202-493-2251.
     Mail: DOT Docket Operations Facility (M-30), U.S. 
Department of Transportation, West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590.
     Hand Delivery: DOT Docket Operations Facility, U.S. 
Department of Transportation, West Building, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., 
Monday through Friday, except federal holidays.
    Instructions: Identify the docket number, PHMSA-2009-0192, at the 
beginning of your comments. If you mail your comments, we request that 
you send two copies. To receive confirmation that PHMSA received your 
comments, include a self-addressed stamped postcard. Note: All comments 
are electronically posted without changes or edits, including any 
personal information provided.

Privacy Act Statement

    Anyone can search the electronic form of comments received in 
response to any of our dockets by the name of the individual submitting 
the comment (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.). DOT's complete Privacy Act 
Statement was published in the Federal Register on April 11, 2000 (65 
FR 19477).

FOR FURTHER INFORMATION CONTACT: Steve Fischer, Director of Program 
Development, PHMSA by e-mail at [email protected]; or Larry White, 
Attorney-Advisor, PHMSA by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Objective

    Excavation damage is a leading cause of pipeline failure incidents. 
Better, more effective enforcement of state damage prevention laws is 
seen as a key to making further reductions in pipeline damage 
incidents.
    PHMSA is seeking to encourage states to strengthen their excavation 
damage prevention laws and to adequately enforce those laws. Toward 
this goal and in response to language included in the Pipeline 
Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006 
(Pub. L. 109-468), PHMSA intends to issue criteria and procedures, 
through a rulemaking proceeding, for determining whether states are 
adequately enforcing their damage prevention laws, and for conducting 
federal enforcements if necessary. This ANPRM seeks feedback and 
comments regarding the development of those criteria and procedures.

II. Background

A. PHMSA Damage Prevention Efforts

    PHMSA has made extensive efforts over many years to improve 
excavation damage prevention as it pertains to pipeline safety. These 
have included outreach to and cooperative efforts with a wide spectrum 
of damage prevention stakeholders, including:

 Public and community organizations
 Excavators and property developers
 Emergency responders
 Local, state and federal government agencies
 Pipeline and other underground facility operators
 Industry trade associations
 Consensus standards organizations
 Environmental organizations
    Current PHMSA programs and recent initiatives sponsored and/or 
supported by PHMSA designed to enhance pipeline safety through 
improvements in excavation damage prevention include:
     State Pipeline Safety Partners--Supported by funding 
agreements with PHMSA, state agencies can assume safety jurisdiction 
for intrastate and/or interstate gas and hazardous liquid pipeline 
operators. To assume jurisdiction, states must publish regulations that 
meet or exceed the federal safety regulations. Our state pipeline 
safety partners are represented by the National Association of Pipeline 
Safety Representatives (NAPSR), which strives to strengthen state 
pipeline safety programs through promotion of improved pipeline safety 
standards, education, training, and technology. PHMSA frequently 
consults with NAPSR, especially for issues concerning intrastate 
pipelines.
     Grants to States and Communities--Each state has 
established laws, regulations, and procedures shaping the state damage 
prevention program. PHMSA provides grant opportunities intended to help 
states improve their damage prevention programs to protect pipelines. 
States seeking damage prevention program grants must incorporate the 
nine elements of effective damage prevention programs identified in the 
PIPES Act of 2006 into their programs. PHMSA also offers Technical 
Assistance Grants (TAG) to communities. Informed communities play a 
vital role in the safety and reliability of pipeline operations. 
PHMSA's TAG program offers new opportunities to strengthen the depth 
and quality of public participation in pipeline safety and damage 
prevention matters.
     Consensus Standards--Office of Pipeline Safety (OPS) works 
closely with several national consensus standards organizations, such 
as the American Society of Mechanical Engineers (ASME), the American 
Petroleum Institute (API) and the National Association of Corrosion 
Engineers (NACE). These organizations include members from various 
stakeholder groups and produce effective standards balanced through a 
consensus process. PHMSA recognizes the value of stakeholder consensus 
and appreciates the hard work required to develop and publish consensus 
technical safety standards. When these standards complement or enhance 
federal pipeline safety regulations, they may be incorporated into the 
regulations by reference. One example of an incorporated consensus 
standard intended to help improve pipeline damage prevention is 
American Petroleum Institute (API) Recommended Practice (RP) 1162, 
Public Awareness Programs for Pipeline Operators.
     Research and Development (R&D)--PHMSA technical review 
committees identify R&D priorities and select projects for funding. 
PHMSA's R&D program goal is to drive improvements in various aspects of 
pipeline safety, including damage prevention. The program focuses on 
the rapid conversion of new technology into tools pipeline stakeholders 
can use to improve pipeline safety. Completed

[[Page 55799]]

R&D projects often provide the technical basis for regulations and 
consensus safety standards. Other R&D projects summarize information 
necessary for well-informed decisions by pipeline safety stakeholders.
     Public Awareness Programs--Pipeline safety regulations 
address all aspects of public awareness communications. Pipeline 
operators are required to implement public awareness programs in 
communities traversed by their pipelines. They must inform 
stakeholders, including the public, excavators, emergency responders, 
and local officials, on how to recognize pipeline failures and of what 
actions to take in such an event. Operators must develop plans for 
carrying out their public awareness activities and must evaluate the 
effectiveness of their programs to identify needed improvements. These 
requirements are reflected in PHMSA's adoption of API RP 1162 into the 
pipeline safety regulations, as noted above.
     Focused Damage Prevention Initiatives--PHMSA invests 
considerable resources in identifying damage prevention best practices 
and in raising stakeholder awareness regarding pipeline damage 
prevention. PHMSA's Stakeholder Communications Web site (http://primis.phmsa.dot.gov/comm) provides additional information on these and 
other recent PHMSA damage prevention initiatives, including:
    [cir] Damage Prevention Best Practices--In 1999, PHMSA sponsored 
the landmark Common Ground Study to identify ``best practices'' to 
prevent damage to pipelines and other underground facilities. The 
nonprofit Common Ground Alliance (CGA) now provides stewardship to 
ensure the Damage Prevention Best Practices are maintained, updated, 
and promoted for implementation. The CGA Best Practices are recognized 
nationally and internationally.
    [cir] Common Ground Alliance--The CGA promotes damage prevention 
across all underground facility damage prevention stakeholder groups. 
Its individual members and member/sponsor organizations represent the 
diverse spectrum of these stakeholders. PHMSA supported the formation 
and incorporation of the CGA and continues to support its efforts 
toward pipeline damage prevention through grants and cooperative 
agreements.
    [cir] 811--PHMSA supported and championed the national 3-digit 
dialing number to provide a standard and easily remembered number for 
excavators to call to access the local one-call damage prevention 
center.
    [cir] Community Assistance and Technical Services (CATS) Managers--
PHMSA established the CATS program and deploys CATS personnel in each 
of its five regions. CATS Managers provide community assistance and 
technical services to all stakeholders. The main focus of the CATS 
program is to foster effective communications regarding pipeline safety 
among PHMSA and other stakeholders, and assist permitting agencies 
issuing permits required for safety-related pipeline repairs and 
construction projects.
    [cir] VA Pilot Project--PHMSA sponsors and supports the Virginia 
Pilot Project for Incorporating Global Positioning System (GPS) 
Technology to Enhance One-Call Damage Prevention. The report for Phase 
I of the VA Pilot Project is available from PHMSA's Stakeholder 
Communications Web site.
    [cir] Pipelines and Informed Planning Alliance (PIPA)--PIPA was 
initiated by and is supported by PHMSA. It is driven by requirements in 
the Pipeline Safety Improvement Act of 2002 (PSIA) and recommendations 
in the Transportation Research Board (TRB) Special Report 281. The PIPA 
initiative aims to improve damage prevention and pipeline safety by 
enhancing communication between pipeline operators and property owners/
developers, and to ensure that decisions about land use and development 
near transmission pipelines are risk-informed.
    [cir] Damage Prevention Assistance Program (DPAP)--PHMSA has 
developed guidance, ``Strengthening State Damage Prevention Programs,'' 
to assist stakeholders. The guidance draws on the definition of 
effective damage prevention programs found in the PIPES Act of 2006. It 
examines the nine elements specified in the PIPES Act and makes 
suggestions for implementing them at the state level. State programs 
can be improved by incorporating the nine elements and by identifying 
and implementing positive changes in processes, procedures, 
technologies and damage prevention laws.
    These efforts are producing benefits. Data from PHMSA Significant 
Incident Files dated July 14, 2009, indicates that serious pipeline 
incidents caused by excavation damage have begun to trend downward. 
However, despite these efforts and the efforts of the states, pipeline 
operators, and other stakeholders, excavation damage to gas and 
hazardous liquid pipelines continues to be the single leading cause of 
pipeline incidents. Based on data provided to PHMSA,\1\ during a recent 
10-year period, from 1998-2008, excavation damage alone was cited as 
the cause in almost 26 percent of significant incidents for all 
pipeline systems. Better, more effective enforcement of state damage 
prevention laws is seen as a key to making further reductions in 
pipeline damage incidents.
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    \1\ PHMSA Significant Incidents Files, April 15, 2009.
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    While excavation damage is the cause in a significant portion of 
all pipeline failure incidents, it is cited as the cause in a 
relatively higher portion of natural gas distribution incidents. To 
look at this issue, PHMSA initiated and sponsored in 2005 an 
investigation of the risks and threats to gas distribution systems. 
This investigation was conducted through the efforts of four joint 
work/study groups, each of which included representatives of the 
stakeholder public, the gas distribution pipeline industry, state 
pipeline safety representatives, and PHMSA. The areas of their 
investigations included excavation damage prevention. The Distribution 
Integrity Management for Gas Distribution, Report of Phase I 
Investigations (DIMP Report) was issued in December 2005. As noted in 
the DIMP Report, the Excavation Damage Prevention work/study group 
reached four key conclusions.
     Excavation damage poses by far the single greatest threat 
to distribution system safety, reliability and integrity; therefore, 
excavation damage prevention presents the most significant opportunity 
for distribution pipeline safety improvements.
     States with comprehensive damage prevention programs that 
include effective enforcement have a substantially lower probability of 
excavation damage to pipeline facilities than states that do not. The 
lower probability of excavation damage translates to a substantially 
lower risk of serious incidents and consequences resulting from 
excavation damage to pipelines.
     A comprehensive damage prevention program requires nine 
important elements be present and functional for the program to be 
effective. All stakeholders must participate in the excavation damage 
prevention process. The elements are:
    1. Enhanced communication between operators and excavators.
    2. Fostering support and partnership of all stakeholders in all 
phases (enforcement, system improvement, etc.) of the program.

[[Page 55800]]

    3. Operator's use of performance measures for persons performing 
locating of pipelines and pipeline construction.
    4. Partnership in employee training.
    5. Partnership in public education.
    6. Enforcement agencies' role as partner and facilitator to help 
resolve issues.
    7. Fair and consistent enforcement of the law.
    8. Use of technology to improve all parts of the process.
    9. Analysis of data to continually evaluate/improve program 
effectiveness.
     Federal legislation is needed to support the development 
and implementation of damage prevention programs that include effective 
enforcement as a part of the state's pipeline safety program. This is 
consistent with the objectives of the state pipeline safety programs, 
which are to ensure the safety of the public by addressing threats to 
the distribution infrastructure. The legislation will not be effective 
unless it includes provisions for ongoing funding such as federal 
grants to support these efforts. This funding is intended to be in 
addition to, and independent of, existing federal funding of state 
pipeline safety programs.
    Another recent report prepared on behalf of PHMSA \2\ concluded 
that excavation damage continues to be a leading cause of serious 
pipeline failures and that better one-call enforcement is a key gap in 
damage prevention. In that regard, the Mechanical Damage Report noted 
that most jurisdictions have established laws to enforce one-call 
notification compliance; however, it noted that many pipeline operators 
consider lack of enforcement to be degrading the effectiveness of one-
call programs. The report also noted that administrative enforcement 
measures managed through government departments are relatively easy to 
implement and have proven to be effective. It cited that in 
Massachusetts, 3,000 violation notices were issued from 1986 to the 
mid-1990s, contributing to a decrease of third-party damage incidents 
on all types of facilities from 1,138 in 1986 to 421 in 1993. The 
report also cited findings from another study that enforcement of the 
one-call notification requirement was the most influential factor in 
reducing the probability of pipeline strikes and that the number of 
pipeline strikes is proportionate to the degree of enforcement.
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    \2\ Mechanical Damage Final Report, Michael Baker Jr., Inc., 
April 2009.
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    With respect to the effectiveness of current regulations, the 
Mechanical Damage Report stated that an estimated two-thirds of 
pipeline excavation damage is caused by third parties and found that 
the problem is compounded if the pipeline damage is not promptly 
reported to the pipeline operator so that corrective action can be 
taken. It also noted ``when the oil pipeline industry developed the 
survey for its voluntary spill reporting system--known as the Pipeline 
Performance Tracking System (PPTS)--it also recognized that damage to 
pipelines, including that resulting from excavation, digging, and other 
impacts, is also precipitated by operators (``first parties'') and 
their contractors (``second parties'')''.
    Finally, the report found that for some pipeline excavation damage 
data that was evaluated, ``in more than 50 percent of the incidents, 
one-call associations were not contacted first'' and that ``failure to 
take responsible care, to respect the instructions of the pipeline 
personnel, and to wait the proper time accounted for another 50 percent 
of the incidents.''

B. The Pipeline Inspection, Protection, Enforcement, and Safety Act of 
2006

    On December 29, 2006, the Pipeline and Hazardous Materials Safety 
Administration's pipeline safety program was reauthorized for an 
additional four years, through 2010, by enactment of the Pipeline 
Inspection, Protection, Enforcement, and Safety Act of 2006 (Pub. L. 
109-468). The PIPES Act of 2006 provides for enhanced safety and 
environmental protection in pipeline transportation, enhanced 
reliability in the transportation of the Nation's energy products by 
pipeline, and other purposes. Major portions of the PIPES Act were 
focused on damage prevention including additional resources and clear 
program guidelines as well as additional enforcement authorities to 
assist states in developing effective excavation damage prevention 
programs.
    With respect to resources, the PIPES Act of 2006 provides 
incentives through funding grants for states to improve the overall 
quality and effectiveness of their damage prevention programs. It 
provides an increased funding level up to 80% for state agencies that 
submit an annual certification and participate in the pipeline and/or 
hazardous liquid safety programs. As noted in 49 U.S.C. 60105(b), each 
certification submitted must state that the state authority ``(4) is 
encouraging and promoting the establishment of a program designed to 
prevent damage by demolition, excavation, tunneling, or construction 
activity to the pipeline facilities to which the certification applies 
that subjects persons who violate the applicable requirements of that 
program to civil penalties and other enforcement actions that are 
substantially the same as are provided under this chapter.* * *''
    PHMSA's damage prevention grants will facilitate the establishment 
of comprehensive damage prevention programs in states that do not have 
such programs and will help improve damage prevention programs in 
states that do. PHMSA posted a Grants.gov opportunity in November 2007, 
with a $100,000 maximum grant per state and $1.5 million in total grant 
funding available. During 2008-2009, PHMSA awarded 27 grants to state 
agencies or one-call centers under state authority for improvements in 
their state damage prevention programs. The grant awards covered a wide 
scope of projects. Examples include: A study on the scope and 
effectiveness of the underground utility damage prevention system 
within the state; the design and implementation of a computer-based 
system that tracks, measures, analyzes and reports the overall 
effectiveness of damage prevention training programs; staff training; 
development of software and world wide web applications; development of 
a state-of-the-art plastic pipe locating device; and additional staff 
positions and equipment purchases to enhance enforcement of the state 
damage prevention laws and regulations. Summaries of these projects are 
available at http://primis.phmsa.dot.gov/comm/DamagePreventionGrantsToStates.htm.
    With respect to program guidelines and authorities, the PIPES Act 
of 2006 identifies nine elements that effective damage prevention 
programs will include. These are, essentially, identical to those nine 
elements noted in the DIMP Report discussed in the previous subsection.
    Of particular note, relevant to this ANPRM, is Element 7, which 
identifies effective enforcement of state damage prevention laws and 
regulations, including the use of civil penalties for violations, as a 
key part of an effective state program. The PIPES Act also provided 
PHMSA with limited authority to conduct civil enforcement proceedings 
against excavators who damage pipelines in a state that has failed to 
adequately enforce its damage prevention laws. Specifically, Section 2 
of the PIPES Act established 49 U.S.C. 60114 to provide that the 
Secretary of Transportation may take civil enforcement action against 
excavators who (1) fail to use a one-call system

[[Page 55801]]

before excavating, or (2) who fail to regard the location information 
or markings established by a pipeline facility operator, and (3) who 
cause damage to a pipeline facility that may endanger life or cause 
serious bodily harm or damage to property and fail to promptly report 
the damage and fail to call 911 if the damage results in a release of 
pipeline products. The PIPES Act limited the Secretary's ability to 
take civil enforcement action against these excavators, in that the 
Secretary may not conduct an enforcement proceeding for a violation 
within the boundaries of a state that has the authority to impose 
penalties described in 49 U.S.C. 60134(b)(7) against persons who 
violate that state's damage prevention laws, unless the Secretary has 
determined that the state's enforcement is inadequate to protect 
safety, consistent with this chapter, and until the Secretary issues, 
through a rulemaking proceeding, the procedures for determining 
inadequate state enforcement of penalties. This ANPRM initiates that 
rulemaking procedure. Following is citation of these additions from the 
PIPES Act.

    SEC. 2. PIPELINE SAFETY AND DAMAGE PREVENTION.
    (a) ONE CALL CIVIL ENFORCEMENT.--
    (1) PROHIBITIONS.--Section 60114 is amended by adding at the end 
the following:
    (d) PROHIBITION APPLICABLE TO EXCAVATORS.--A person who engages 
in demolition, excavation, tunneling, or construction--
    (1) May not engage in a demolition, excavation, tunneling, or 
construction activity in a state that has adopted a one-call 
notification system without first using that system to establish the 
location of underground facilities in the demolition, excavation, 
tunneling, or construction area;
    (2) May not engage in such demolition, excavation, tunneling, or 
construction activity in disregard of location information or 
markings established by a pipeline facility operator pursuant to 
subsection (b); and
    (3) Who causes damage to a pipeline facility that may endanger 
life or cause serious bodily harm or damage to property--
    (A) May not fail to promptly report the damage to the owner or 
operator of the facility; and
    (B) If the damage results in the escape of any flammable, toxic, 
or corrosive gas or liquid, may not fail to promptly report to other 
appropriate authorities by calling the 911 emergency telephone 
number.
    (e) PROHIBITION APPLICABLE TO UNDERGROUND PIPELINE FACILITY 
OWNERS AND OPERATORS.--Any owner or operator of a pipeline facility 
who fails to respond to a location request in order to prevent 
damage to the pipeline facility or who fails to take reasonable 
steps, in response to such a request, to ensure accurate marking of 
the location of the pipeline facility in order to prevent damage to 
the pipeline facility shall be subject to a civil action under 
section 60120 or assessment of a civil penalty under section 60122.
    (f) LIMITATION.--The Secretary may not conduct an enforcement 
proceeding under subsection (d) for a violation within the 
boundaries of a state that has the authority to impose penalties 
described in section 60134(b)(7) against persons who violate that 
state's damage prevention laws, unless the Secretary has determined 
that the state's enforcement is inadequate to protect safety, 
consistent with this chapter, and until the Secretary issues, 
through a rulemaking proceeding, the procedures for determining 
inadequate state enforcement of penalties.

III. Purpose and Scope of the ANPRM

    PHMSA is a strong supporter of expanded state damage prevention 
enforcement to protect pipelines. PHMSA strongly believes that 
individual states should retain the primary responsibility to 
effectively enforce damage prevention laws. PHMSA's goal is to minimize 
the need to take federal enforcement action against excavators that 
damage pipelines by encouraging states to strengthen their damage 
prevention laws to include the authority to impose penalties against 
persons who violate those laws and to adequately enforce those laws 
through the use of civil penalties. However, PHMSA must follow 
Congressional direction and assume that responsibility if it is 
determined that a state is not doing so adequately. In order to do so, 
PHMSA must have procedures in place to evaluate state programs to make 
such determinations. These procedures will enable PHMSA to conduct 
civil enforcement proceedings against excavators who damage pipelines, 
in accordance with the limitations prescribed in 49 U.S.C. 60114(f), as 
noted above. The procedures to be used to determine if a state is 
adequately enforcing its one-call damage prevention laws will 
necessarily include a means of allowing a state the opportunity to 
contest a determination that it is not adequately enforcing its damage 
prevention laws and will provide an adjudication process to be used if 
PHMSA determines that an excavator is to be subject to federal 
enforcement as the result of a violation of the damage prevention 
requirements cited in 49 U.S.C. 60114. These procedures will enhance 
pipeline safety and will encourage states to develop effective damage 
prevention programs.
    The purpose of this ANPRM is to enable PHMSA to begin the process 
of rulemaking to establish procedures for determining the adequacy of 
state enforcement of damage prevention requirements and to articulate a 
proposed process for federal enforcement. To that purpose, PHMSA is 
soliciting feedback and comments regarding: (1) The criteria for 
determining the adequacy of a state's enforcement program; (2) the 
procedures PHMSA will use to make this determination; (3) the federal 
standards to be enforced against an excavator in the event PHMSA 
determines a state to have inadequate enforcement; and (4) the 
administrative process for imposing fines or penalties on an excavator 
alleged to have violated the applicable standards.

IV. Issues on Which PHMSA Seeks Comment

    Pipeline operators, excavators, states and the public are urged to 
carefully consider the appropriate procedures for determining the 
adequacy of state damage prevention enforcement programs, as well as 
the need for federal enforcement in the absence of an adequate state 
program. Commenters should be aware that the information and data 
generated in response to this ANPRM could result in a notice of 
proposed rulemaking. We invite commenters to submit data and 
information on the following:

A. Considerations for Determining the Adequacy of State Damage 
Prevention Enforcement Programs

    A threshold criterion for determining the adequacy of a state's 
damage prevention enforcement program will be whether the state has 
established and excercised its authority to assess civil penalties for 
violations of its one-call laws. PHMSA will likely consider the 
following issues in further evaluating the enforcement component of 
state damage prevention programs:
     Current federal pipeline safety regulations, 49 CFR 
192.614 and 49 CFR 195.442, require that gas and hazardous liquid 
pipeline operators, respectively, comply with certain damage prevention 
requirements through participation in a qualified one-call system. 
Specifically, this involves the receipt and recordation of 
notifications from excavators of planned excavation activities and 
performing their locating and marking responsibilities. Does state law 
contain similar requirements for operators to be members of and 
participate in the state's one-call system?
     Does state law require all excavators to use the state's 
one-call system and request that underground utilities in the area of 
the planned excavation be located and marked prior to digging?
     Has the state avoided giving exemptions to its one-call 
damage prevention laws to state agencies,

[[Page 55802]]

municipalities, agricultural entities, railroads, and other groups of 
excavators?
     Are the state's requirements detailed and specific enough 
to allow excavators to understand their responsibilities before and 
during excavating in the vicinity of a pipeline?
     Are excavators required to report all pipeline damage 
incidents to the affected pipeline operators?
     Does state law contain a provision requiring that 911 be 
called if a pipeline damage incident causes a release of hazardous 
products?
     Has the responsible state agency established a reliable 
mechanism to ensure that it receives reports of pipeline damage 
incidents on a timely basis? Damage reports should include 
documentation of the consequences of any product release, including the 
extent of service interruptions, product loss, property damage, 
evacuations, injuries, fatalities, and environmental damage, and copies 
of the reports should be made available to the appropriate PHMSA 
Regional Office.
     Does the responsible state agency conduct investigations 
of all excavation damage to pipeline incidents to determine whether the 
excavator appropriately used the one-call system to request a facility 
locate, whether a dig ticket was generated, how quickly the pipeline 
operator responded, whether the pipeline operator followed all of its 
applicable written procedures, whether the excavator waited the 
appropriate time for the facilities to be located and marked, whether 
the pipeline operator's markings were accurate, and whether the digging 
was conducted in a responsible manner?
     Does the state's damage prevention law provide enforcement 
authority including the use of civil penalties, and are the maximum 
penalties similar to the federal maximums (see 49 U.S.C. 60122(a))?
     Has the state designated a state agency with 
responsibility for administering the damage prevention laws?
     Does the state official responsible for determining 
whether or not to proceed with enforcement action document the reasons 
for the decision in a transparent and accountable manner? Are the 
records of these investigations and enforcement decisions made 
available to PHMSA?
     With respect to cases where enforcement action is taken, 
is the state actually exercising its civil penalty authority? Does the 
amount of the civil penalties assessed reflect the seriousness of the 
incident? Are remedial orders given to the violator legally 
enforceable?
     Are annual statistics on the number of excavation damage 
incidents, investigations, enforcement actions, penalties proposed, and 
penalties collected by the state made available to PHMSA and the 
public?
    Commenters are invited to provide comment on these considerations 
and may also offer additions and alternatives that may be equally 
suitable for the purpose of evaluating the adequacy of state damage 
prevention enforcement programs.

B. Administrative Process

    PHMSA seeks comment on the administrative procedures available to a 
state that elects to contest a notice of inadequacy should it receive 
one. The procedures would likely involve a ``paper hearing'' process 
where PHMSA would notify a state that it considers its damage 
prevention enforcement inadequate (i.e., following its annual review), 
and the state would then have an opportunity to submit written 
materials and explanations. PHMSA would then make a final written 
determination including the reasons for the decision. The 
administrative procedures would also likely provide for an opportunity 
for the state to petition for reconsideration of the decision. If the 
state's enforcement program is ultimately deemed inadequate, direct 
federal enforcement against an excavator who violated the state's 
damage prevention law and damaged a pipeline in that state could 
proceed. The procedures would also likely give states the right to make 
a showing at a later time that it has improved its damage prevention 
enforcement program to an adequate level and request that PHMSA 
discontinue federal enforcement in that state.
    Commenters are invited to submit their views on this process or 
suggest alternatives. In particular, does this process strike the right 
balance between the Congressional directive to PHMSA to undertake 
federal enforcement where necessary while providing a state with a fair 
and efficient means of showing that the state's enforcement program is 
adequate? PHMSA will likely evaluate state damage prevention 
enforcement programs on an annual basis, considering factors such as 
those set forth in paragraph A above. This annual review will likely 
include a review of all of the enforcement actions taken by the state 
over the previous year. For states that have been deemed to have 
inadequate programs in their most recent annual reviews and in 
accordance with the process outlined in paragraph B, PHMSA could 
conduct federal enforcement without further process.
    With respect to a state that has been deemed nominally adequate in 
its most recent annual review, should the process also enable PHMSA to 
evaluate a state enforcement decision concerning an individual incident 
during the course of the year and potentially conduct federal 
enforcement where a state decided not to undertake enforcement for an 
incident that PHMSA believes may warrant enforcement action?

C. Federal Standard for Excavators

    PHMSA also seeks comment on the establishment of the federal 
standards for excavators that PHMSA would be enforcing in a state that 
has been found to have an inadequate enforcement program. At a minimum 
the standards will directly reflect the words in the U.S. Code cited 
above and include requirements for an excavator to: Use an available 
one-call system before digging, wait the required time, excavate with 
proper regard for location information or markings established by the 
pipeline operator, promptly report any damage to the pipeline operator, 
and report any release of hazardous products to appropriate authorities 
by calling 911.
    Commenters are invited to submit their views on these standards or 
to suggest alternatives. For example:
     Should the federal standards for excavators be limited to 
the minimum requirements reflected in the above-referenced statute or 
should they be more detailed and extensive?
     Will implementing the 911 requirement cause any unintended 
consequences in practice?
     Are there suggested alternatives to these standards?
    The Common Ground Alliance Best Practices and API Recommended 
Practice 1166, Excavation Monitoring and Observation (November 2005), 
could be used to inform the development of such standards.

D. Adjudication Process

    PHMSA also seeks comment from the excavator community on the 
adjudication process that would be used if an excavator were cited by 
PHMSA for failure to comply with the standards established as discussed 
in section C above in a state in which the enforcement has been deemed 
inadequate. At a minimum, an excavator that allegedly violated the 
applicable requirement would have the right to: Receive written notice 
of the allegations, including a description of the factual evidence the 
allegations are based on;

[[Page 55803]]

file a written response to the allegations; request an informal 
hearing; be represented by counsel if he or she chooses; examine the 
evidence; submit relevant information and call witnesses on his or her 
behalf; and otherwise contest the allegations of violation. Hearings 
would likely be held at one of PHMSA's five regional offices or via 
teleconference. The hearing officer would be an attorney from the PHMSA 
Office of Chief Counsel. The excavator would also likely have the 
opportunity to petition for reconsideration of the agency's 
administrative decision and judicial review of final agency action 
would be available to the same extent it is available to a pipeline 
operator.
    Commenters are invited to submit their views on this process or 
suggest alternatives. For example:
     Is the process too formal in the sense that excavators 
contesting a citation would have to prepare a written response for the 
record and potentially appear before a hearing officer?
     Is the process not formal enough in the sense that it does 
not provide for formal rules of evidence, transcriptions, or discovery? 
Or does this process strike the right balance by being efficient and at 
the same time providing enough formality that excavators feel the 
process is fair and their due process rights are maintained?
     How should the civil penalty considerations found in 49 
U.S.C. 60122(b) apply to excavators?

E. Existing Requirements Applicable to Owners and Operators of Pipeline 
Facilities

    Commenters are also invited to submit their feedback and comments 
on the adequacy of PHMSA's existing requirements for pipeline operators 
to participate in one-call organizations, respond to dig tickets, and 
perform their locating and marking responsibilities. Under existing 
pipeline safety regulations 49 CFR 192.614 for gas pipelines and 49 CFR 
195.442 for hazardous liquid pipelines, operators are required to have 
written damage prevention programs that require, in part, that the 
operator provide for marking its pipelines in the area of an excavation 
for which a locate request has been submitted by the excavator.
    Comments could address, for example, whether PHMSA should consider 
making the existing regulatory requirements more detailed and explicit 
in terms of:
     The amount of time for responding to locate requests,
     The accuracy of facility locating and marking, or
     Making operator personnel available to consult with 
excavators following receipt of an excavation notification.

V. Regulatory Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    E.O. 12866 requires agencies to regulate in the ``most cost-
effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' We therefore 
request comments, including specific data if possible, concerning the 
costs and benefits of evaluating state damage prevention programs and 
enforcing federal requirements.

B. Executive Order 13132: Federalism

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by state and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Because evaluating the effectiveness of 
state damage prevention enforcement programs necessarily involves 
states, we invite state and local governments with an interest in this 
rulemaking to comment on the effect that adoption of criteria for 
effective damage prevention programs and enforcement requirements may 
have on state pipeline safety programs.

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), we must consider whether a proposed rule would have a 
significant economic impact on a substantial number of small entities. 
``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. If your business or organization is a small 
entity and if adoption of specific requirements applicable to using 
one-call systems could have a significant economic impact on your 
operations, please submit a comment to explain how and to what extent 
your business or organization could be affected.

D. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) requires 
federal agencies to consider the consequences of federal actions and 
that they prepare a detailed statement analyzing if the action 
significantly affects the quality of the human environment. Interested 
parties are invited to address the potential environmental impacts of 
this ANPRM. We are particularly interested in comments about compliance 
measures that would provide greater benefit to the human environment or 
on alternative actions the agency could take that would provide 
beneficial impacts.

E. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. We invite Indian tribal governments to provide 
comments on any aspect of this ANPRM that may affect Indian 
communities.

F. Paperwork Reduction Act

    Under 5 CFR Part 1320, PHMSA analyzes any paperwork burdens if any 
information collection will be required by a rulemaking. We invite 
comment on the need for any collection of information and paperwork 
burdens, if any.

    Authority:  49 U.S.C. 60101 et seq.; 49 CFR 1.53.

    Issued in Washington, DC, on October 26, 2009.
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
[FR Doc. E9-26099 Filed 10-28-09; 8:45 am]
BILLING CODE 4910-60-P