19800 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

1These numbers are discounted over 10 years at 

7%. 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 196 and 198 

[Docket No. PHMSA–2009–0192] 

RIN 2137–AE43 

Pipeline Safety: Pipeline Damage 

Prevention Programs 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), Department of Transportation 

(DOT). 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: This Notice of Proposed 

Rulemaking (NPRM) seeks to revise the 

Pipeline Safety Regulations to: Establish 

criteria and procedures for determining 

the adequacy of state pipeline 

excavation damage prevention law 

enforcement programs; establish an 

administrative process for making 

adequacy determinations; establish the 

Federal requirements PHMSA will 

enforce in states with inadequate 

excavation damage prevention law 

enforcement programs; and establish the 

adjudication process for administrative 

enforcement proceedings against 

excavators where Federal authority is 

exercised. Pursuant to the Pipeline 

Inspection, Protection, Enforcement, 

and Safety (PIPES) Act of 2006, 

establishment of review criteria for state 

excavation damage prevention law 

enforcement programs is a prerequisite 

should PHMSA find it necessary to 

conduct an enforcement proceeding 

against an excavator in the absence of an 

adequate enforcement program in the 

state where the violation occurs. The 

development of these criteria and the 

subsequent determination of the 

adequacy of state excavation damage 

prevention law enforcement programs is 

intended to encourage states to develop 

effective excavation damage prevention 

law enforcement programs to protect the 

public from the risk of pipeline ruptures 

caused by excavation damage, and allow 

for Federal administrative enforcement 

action in states with inadequate 

enforcement programs. 

DATES: Persons interested in submitting 

written comments on this NPRM must 

do so by June 1, 2012. 

ADDRESSES: Comments should reference 

Docket Number PHMSA–2009–0192 

and may be submitted in the following 

ways: 

• Web Site: Comments should be filed 

at the Federal eRulemaking Portal, 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Fax: 1–202–493–2251. 

• Mail: Docket Operations Facility 

(M–30), U.S. Department of 

Transportation, West Building, 1200 

New Jersey Avenue SE., Washington, 

DC 20590. 

• Hand Delivery: 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: Comments are posted without 

changes or edits to http:// 

www.regulations.gov, including any personal 

information provided. There is a privacy 

statement published on http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Sam 

Hall, Program Manager, PHMSA by 

email at sam.hall@dot.gov or by 

telephone at (804) 556–4678 or Larry 

White, Attorney Advisor, PHMSA by 

email at lawrence.white@dot.gov or by 

telephone at (202) 366–9093. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

This NPRM proposes to amend the 

Federal Pipeline Safety Regulations to: 

(1) Establish criteria and procedures 

PHMSA will use to determine the 

adequacy of state pipeline excavation 

damage prevention law enforcement 

programs. Such determination is a 

prerequisite should PHMSA find it 

necessary to conduct an administrative 

enforcement proceeding against an 

excavator for violation of the Federal 

requirements proposed in this NPRM in 

the absence of adequate state 

enforcement of state excavation damage 

prevention laws; (2) establish an 

administrative process for states to 

contest notices of inadequacy from 

PHMSA should they elect to do so; (3) 

establish the Federal requirements 

PHMSA will enforce in states with 

inadequate excavation damage 

prevention law enforcement programs; 

and (4) establish the adjudication 

process for administrative enforcement 

proceedings against excavators where 

Federal authority is exercised. In the 

absence of regulations specifying the 

criteria that PHMSA will use to evaluate 

a state’s excavation damage prevention 

law enforcement program, PHMSA 

would take no enforcement action. 

Executive Orders 12866 and 13563 

require 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.’’ The expected 

benefit of this rulemaking action is an 

increased deterrent to violations of onecall requirements (though requirements 

vary by state, a one-call system allows 

excavators to call one number in a given 

state in order to ascertain the presence 

of underground utilities) requirements 

and the attendant reduction in pipeline 

incidents and accidents caused by 

excavation damage. Based on incident 

reports submitted to PHMSA, failure to 

use an available one-call system is a 

known cause of pipeline accidents. 

PHMSA analyzed the costs and benefits 

of the proposed rule. To determine the 

benefits, PHMSA was able to obtain data 

for three states over the course of the 

establishment of their excavation 

damage prevention programs (additional 

information about these states can be 

found in the regulatory analysis that is 

in the public docket). Each of the three 

states had a decrease of at least 63 

percent in the number of excavation 

damage incidents occurring after they 

initiated their enforcement programs. 

While many factors can contribute to 

the decrease in state excavation damage 

incidents, PHMSA found these states to 

be a helpful starting point on which to 

estimate the benefits of this rulemaking. 

PHMSA utilized three separate 

effectiveness rates to conservatively 

evaluate the benefits of this rulemaking. 

The rates are based on the reduction of 

incidents of the three states studied and 

more conservative effective rates 

because state pipeline programs vary 

widely, which may lead to a lower 

effective rate than the three states 

analyzed. In addition, we compared the 

overall costs of this rule to the average 

costs associated with a single excavation 

damage incident. PHMSA expects the 

total cost of this rule to be $1.2 million 

while the benefits are $23 million.1

This rulemaking has three separate 

potential cost impacts. The costs to 

excavators to comply with the Federal 

excavation standard, the cost to states to 

have their enforcement programs 

reviewed, to appeal a determination of 

ineffectiveness and to ask for 

reconsideration, and the cost impact on 

the Federal government to enforce the 

Federal excavation standard. With 


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2 Data from the U.S. Department of 

Transportation, PHMSA Office of Pipeline Safety, 

Incident and Accident Reports of Gas Distribution, 

Gas Transmission & Gathering and Hazardous 

Liquid Pipeline Systems. Pipeline incident and 

accident summaries are available on PHMSA 

Stakeholders Communication Web site at: http:// 

primis.phmsa.dot.gov/comm/ 

Index.htm?nocache=3320. 

3 Data from the U.S. Department of 

Transportation, PHMSA Office of Pipeline Safety, 

Incident and Accident Reports of Gas Distribution, 

Gas Transmission & Gathering and Hazardous 

Liquid Pipeline Systems. Pipeline incident and 

accident summaries are available on PHMSA 

Stakeholders Communication Web site at: http:// 

primis.phmsa.dot.gov/comm/ 

Index.htm?nocache=3320. 

4This report is available in the rulemaking 

docket. 

regard to the potential cost impacts on 

excavators, PHMSA believes that 

excavators will not incur any additional 

costs because the Federal excavation 

standard, which is also a self-executing 

standard, mirrors the excavation 

standard in each state and does not 

impose any additional costs on 

excavators. The cost impacts on states 

are those costs associated with having 

their enforcement programs reviewed 

(estimated to be $20,000 per year), to 

appeal a determination of 

ineffectiveness (estimated to be a one 

time cost of $125,000) and to ask for 

reconsideration (estimated to be a onetime cost of $350,000). Therefore, the 

total estimated first year cost impacts on 

states are (($20,000 (annually) + (14 × 

$25,000) + (5 × $25,000)) = $495,000. 

The annual cost impacts on states in 

subsequent years are estimated to be 

$20,000. The annual cost impacts on the 

Federal government are estimated to be 

approximately $80,000. Therefore, the 

total first year cost of this rulemaking is 

estimated to be $547,688 ($470,000 + 

$77,688). The following years the costs 

are estimated to be approximately 

$100,000 per year. The total cost over 

ten years, with a 3% discount rate is 

$1,331,876 and at a 7% discount rate is 

$1,182,602. PHMSA is specifically 

asking for comments on whether it has 

adequately captured the scope and size 

of the costs of this rulemaking. The 

average annual benefits range from 

$10,939,602 to $3,445,975. Evaluating 

just the lower range of benefits over ten 

years results in a total benefit of over 

$29,000,000, with a 3% discount rate, 

and over $23,000,000, with a 7% 

discount rate. In addition, over the past 

22 years, the average reportable incident 

caused $272,200 in property damage 

alone. Therefore, if this proposed 

regulatory action prevents just one 

average reportable incident per year, 

this rulemaking would be cost 

beneficial. Interested readers should 

refer to the Regulatory Evaluation that is 

posted in the docket for additional 

information. 

II. Objective 

Based on incident data PHMSA has 

received from pipeline operators, 

excavation damage is a leading cause of 

natural gas and hazardous liquid 

pipeline failure incidents.2 Better, more 

effective enforcement of state excavation 

damage prevention laws is a key to 

reducing pipeline excavation damage 

incidents. Though all states have a 

damage prevention program, not all 

states adequately enforce their state 

damage prevention laws. Pursuant to 

the Pipeline Inspection, Protection, 

Enforcement and Safety Act of 2006 

(PIPES Act), PHMSA is proposing 

criteria and procedures for determining 

whether a state’s enforcement of its 

excavation damage prevention laws is 

adequate. As mandated by the PIPES 

Act, such determination is a 

prerequisite should PHMSA find it 

necessary to conduct an administrative 

enforcement proceeding against an 

excavator for violating Federal 

excavation standards. This NPRM also 

proposes to establish the administrative 

process for states to contest notices of 

inadequacy PHMSA issues, the Federal 

requirements PHMSA will enforce in 

states with inadequate enforcement 

programs, and the adjudication process 

for administrative enforcement 

proceedings against excavators where 

Federal authority is exercised. 

III. Background 

A. Pipeline Incidents Caused by 

Excavation Damage 

Excavation damage is a leading cause 

of natural gas and hazardous liquid 

pipeline failure incidents. For the 

period from 1988 to 2010, 1,613 

incidents, 185 fatalities, 697 injuries, 

and $438,785,552 in estimated property 

damages were reported as being caused 

by excavation damage on all PHMSA 

regulated pipeline systems in the United 

States, including onshore and offshore 

hazardous liquid, gas transmission, and 

gas distribution lines, except gathering 

lines.3

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 

Integrity Management for Gas 

Distribution, Report of Phase I 

Investigations (DIMP Report) was issued 

in December 2005.4 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. 

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 


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5Mechanical Damage Final Report, Michael Baker 

Jr., Inc., April 2009. 

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 (Mechanical 

Damage Report) prepared on behalf of 

PHMSA 5 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, the report noted 

that many pipeline operators consider 

lack of enforcement to be degrading the 

effectiveness of one-call programs. The 

report 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. 

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 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. State Damage Prevention Programs 

There is considerable variability 

among the states in terms of physical 

geography, population density, 

underground infrastructure, excavation 

activity, and economic activity. For 

example, South Dakota is a rural, 

agricultural state with a relatively low 

population density. In contrast, New 

Jersey is more densely populated and is 

host to a greater variety of land uses, 

denser underground infrastructure, and 

different patterns of excavation activity. 

These differences between states equate 

to differences in the risk of excavation 

damage to underground infrastructure, 

including pipelines. Denser population 

often means denser underground 

infrastructure; more rural and 

agricultural states will have different 

underground infrastructure densities 

and excavation patterns than more 

urbanized states. 

There is no single, comprehensive 

national damage prevention law. On the 

contrary, all 50 states in the United 

States have a law designed to prevent 

excavation damage to underground 

utilities. However, these state laws vary 

considerably and no two state laws are 

identical. Therefore, excavation damage 

prevention stakeholders in each state 

are subject to different legal and 

regulatory requirements. Variances in 

state laws include excavation notice 

requirements, damage reporting 

requirements, exemptions from the 

requirements of the laws for excavators 

and/or utility operators, provisions for 

enforcement of the laws, and many 

others. PHMSA has developed a 

reference for understanding the 

variability in these state laws at http:// 

primis.phmsa.dot.gov/comm/ 

DamagePreventionSummary.htm. 

C. PHMSA Damage Prevention Efforts 

PHMSA has made extensive efforts 

over many years to improve excavation 

damage prevention as it relates to 

pipeline safety. These efforts have 

included outreach, grants, and funding 

of cooperative agreements with a wide 

spectrum of excavation 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. 

These initiatives are described in 

detail in the ANPRM on this subject that 

PHMSA published in the Federal 

Register on October 29, 2009 (74 FR 

55797). The ANPRM can be viewed at 

http://www.regulations.gov, Docket ID 

PHMSA–2009–0192. These initiatives 

appear to have contributed to an overall 

decline in the rate of excavation 

damages to pipelines and other 

underground utilities, but PHMSA is 

unaware of any studies of the direct 

effect of these initiatives on the national 

excavation damage rate to pipelines. 

PHMSA invites comments regarding any 

studies that might have evaluated the 

effectiveness of these initiatives. 

D. The Pipeline Inspection, Protection, 

Enforcement, and Safety Act of 2006 

On December 29, 2006, the PHMSA’s 

pipeline safety program was 

reauthorized by enactment of the PIPES 

Act. The PIPES Act 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 encourage 

states in developing effective excavation 

damage prevention programs. The 

PIPES Act identifies nine elements that 

effective damage prevention programs 

should include. These are, essentially, 

identical to those nine elements noted 

in the DIMP Report discussed in the 

previous subsection. 

The PIPES Act also provided PHMSA 

with limited authority to conduct 

administrative civil enforcement 

proceedings against excavators who 

damage pipelines in a state that has 

failed to adequately enforce its 

excavation damage prevention laws. 

Specifically, Section 2 of the PIPES Act 

provides that the Secretary of 

Transportation may take civil 

enforcement action against excavators 

who: 

1. Fail to use the one-call notification 

system in a state that has adopted a onecall notification system before engaging 

in demolition, excavation, tunneling, or 

construction activity to establish the 

location of underground facilities in the 

demolition, excavation, tunneling, or 

construction area; 

2. Disregard location information or 

markings established by a pipeline 

facility operator while engaging in 

demolition, excavation, tunneling, or 

construction activity; and 

3. Fail to report excavation damage to 

a pipeline facility to the owner or 

operator of the facility promptly, and 

report to other appropriate authorities 


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by calling the 911 emergency telephone 

number if the damage results in the 

escape of any flammable, toxic, or 

corrosive gas or liquid that may 

endanger life or cause serious bodily 

harm or damage to property. 

The PIPES Act limited the Secretary’s 

ability to take civil enforcement action 

against these excavators, unless the 

Secretary has determined that the state’s 

enforcement of its damage prevention 

laws is inadequate to protect safety. 

The following is the applicable 

citation 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. 

E. Advance Notice of Proposed 

Rulemaking 

On October 29, 2009, PHMSA 

published an Advance Notice of 

Proposed Rulemaking (ANPRM) to seek 

feedback and comments regarding the 

development of criteria and procedures 

for determining whether states are 

adequately enforcing their excavation 

damage prevention laws, and for 

conducting Federal administrative 

enforcement, if necessary. The ANPRM 

also outlined PHMSA’s excavation 

damage prevention initiatives and 

described the requirements of the PIPES 

Act, which authorizes PHMSA to 

conduct this rulemaking action. The 

ANPRM may be viewed at http:// 

www.regulations.gov by searching for 

Docket ID PHMSA–2009–0192. 

Specifically, the ANPRM sought 

comments on the following subjects: 

1. Criteria for determining the 

adequacy of state excavation damage 

prevention law enforcement programs; 

2. The administrative procedures 

available to a state for contesting a 

notice of inadequacy should it receive 

one; 

3. The Federal requirements for 

excavators that PHMSA would be 

enforcing in a state that PHMSA has 

determined to have an inadequate 

enforcement program; 

4. The adjudication process that 

PHMSA would use if PHMSA cited an 

excavator for failure to comply with the 

Federal requirements for excavators 

PHMSA establishes through this 

rulemaking; and 

5. 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. 

A summary of comments and our 

response to those comments are 

provided later in the document. 

F. Notice of Proposed Rulemaking 

This NPRM proposes to respond to 

the Congressional mandate specified in 

Section 2 of the PIPES Act to: 

1. Establish criteria and procedures 

PHMSA will use to determine the 

adequacy of state pipeline excavation 

damage prevention law enforcement 

programs. Such determination is a 

prerequisite should PHMSA find it 

necessary to conduct an administrative 

enforcement proceeding against an 

excavator for violation of the Federal 

requirements proposed in this NPRM in 

the absence of adequate state 

enforcement of state excavation damage 

prevention laws. 

2. Establish an administrative process 

for states to contest notices of 

inadequacy from PHMSA should they 

elect to do so. 

3. Establish the Federal requirements 

PHMSA will enforce in states with 

inadequate excavation damage 

prevention law enforcement programs. 

4. Establish the adjudication process 

for administrative enforcement 

proceedings against excavators where 

Federal authority is exercised. 

G. Summary of the Proposed 

Rulemaking 

A. Standards for Effective State Damage 

Prevention Enforcement Programs 

This NPRM proposes to establish the 

criteria by which PHMSA will evaluate 

state excavation damage prevention law 

enforcement programs for minimum 

adequacy to protect public safety. 

PHMSA is seeking comments on using 

the following criteria to evaluate the 

effectiveness of a state’s damage 

prevention enforcement program: 

1. Does the state have the authority to 

enforce its state excavation damage 

prevention law through civil penalties? 

2. Has the state designated a state 

agency or other body as the authority 

responsible for enforcement of the state 

excavation damage prevention law? 

3. Is the state assessing civil penalties 

for violations at levels sufficient to 

ensure compliance and is the state 

making publicly available information 

that demonstrates the effectiveness of 

the state’s enforcement program? 

4. Does the enforcement authority (if 

one exists) have a reliable mechanism 

(e.g., mandatory reporting, complaintdriven reporting, etc.) for learning about 

excavation damage to underground 

facilities? 

5. Does the state employ excavation 

damage investigation practices that are 

adequate to determine the at-fault party 

when excavation damage to 

underground facilities occurs? 

6. At a minimum, does the state’s 

excavation damage prevention law 

require the following? 

a. Excavators may not engage in 

excavation activity without first using 

an available one-call notification system 

to establish the location of underground 

facilities in the excavation area. 

b. Excavators may not engage in 

excavation activity in disregard of the 

marked location of a pipeline facility as 

established by a pipeline operator. 

c. An excavator who causes damage to 

a pipeline facility: 

i. Must report the damage to the 

owner or operator of the facility at the 

earliest practical moment following 

discovery of the damage; and, 

ii. If the damage results in the escape 

of any flammable, toxic, or corrosive gas 


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or liquid that may endanger life or cause 

serious bodily harm or damage to 

property, must promptly report to other 

appropriate authorities by calling the 

911 emergency telephone number or 

another emergency telephone number. 

7. Does the state limit exemptions for 

excavators from its excavation damage 

prevention law? A state must provide to 

PHMSA a written justification for any 

exemptions for excavators from state 

damage prevention requirements. 

PHMSA will make the written 

justifications available to the public. 

PHMSA may also consider individual 

enforcement actions taken by a state in 

evaluating the effectiveness of a state’s 

damage prevention enforcement 

program. PHMSA requests comments on 

this issue. 

PHMSA invites comments on the 

proposed criteria. In particular, are 

these criteria sufficient to assess the 

adequacy of state excavation damage 

prevention law enforcement programs? 

Do these criteria strike the right balance 

between establishing standards for 

minimum adequacy of state 

enforcement programs without being 

overly prescriptive? 

B. Administrative Process for States 

This NPRM proposes the 

administrative procedures that would be 

available to a state that elects to contest 

a notice of inadequacy. The proposed 

procedures involve a paper hearing 

where PHMSA finds the state’s 

excavation damage prevention law 

enforcement inadequate and documents 

the basis for that finding (i.e., following 

its annual review of the state’s pipeline 

safety program). Then, the state would 

have an opportunity to submit written 

materials and explanations. PHMSA 

would then make a final written 

determination including the reasons for 

the decision. PHMSA proposes to make 

publicly available all notices, findings 

and determinations. The proposed 

administrative procedures also 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 

administrative enforcement against an 

excavator who damaged a pipeline in 

that state could proceed. The 

procedures also give a state the 

opportunity to demonstrate at a later 

time that it has improved its excavation 

damage prevention law enforcement 

program to an adequate level and upon 

such showing, request that PHMSA 

discontinue Federal administrative 

enforcement in that state. PHMSA will 

respond to such requests and perform 

an adequacy review in a timely manner 

and no later than the next annual 

review. 

PHMSA invites further comments on 

these proposed administrative 

procedures. In particular, does this 

process strike the right balance between 

Congress’ direction to undertake Federal 

administrative enforcement, where 

necessary, while providing a state with 

a fair and efficient means of showing 

that the state’s enforcement program is 

adequate? PHMSA is proposing to 

evaluate state excavation damage 

prevention law enforcement programs 

consistent with the criteria proposed in 

Section 198.55 below. For states that 

have been deemed to have inadequate 

enforcement programs in their most 

recent annual reviews and in 

accordance with the established 

process, PHMSA could conduct Federal 

administrative enforcement against 

excavators without further state process. 

A state with an inadequate program will 

have five years from the date of the 

finding to make program improvements 

that meet PHMSA’s criteria for 

minimum adequacy. A state that fails to 

establish an adequate enforcement 

program in accordance with 49 CFR 

198.55 within five years of the finding 

of inadequacy may be subject to reduced 

grant funding established under 49 

U.S.C. 60107. The amount of the 

reduction will be determined using the 

same process PHMSA currently uses to 

distribute the grant funding; PHMSA 

will factor the findings from the annual 

review of the excavation damage 

prevention enforcement program into 

the 49 U.S.C. 60107 grant funding 

distribution to state pipeline safety 

programs. The amount of the reduction 

in 49 U.S.C. 60107 grant funding shall 

not exceed 10% of prior year funding. 

If a state fails to implement an adequate 

enforcement program within five years 

of a finding of inadequacy, the Governor 

of that state may petition the 

Administrator of PHMSA, in writing, for 

a temporary waiver of the penalty, 

provided the petition includes a clear 

plan of action and timeline for 

achieving program adequacy. 

Even though the proposed rule does 

not require states to take any actions, 

the states have several incentives for 

enforcing their own excavation damage 

prevention laws. First, states with 

effective enforcement programs have 

lower rates of excavation damages to 

underground utilities, including 

pipelines. Lower damage rates translate 

to increased public and worker safety 

and decreased repair and outage costs 

for pipeline operators. 

This proposed rule provides several 

additional incentives for states to 

enforce their own excavation damage 

prevention laws. First, in the comments 

to the ANPRM on this subject, 

stakeholders expressed their desire for 

states to maintain control over their own 

excavation damage prevention 

programs, including the enforcement of 

damage prevention laws. Stakeholders 

agree that damage prevention is a local 

and state issue and would prefer to 

avoid Federal involvement in 

enforcement. Second, this NPRM 

proposes to reduce PHMSA base grant 

funding for state pipeline safety 

programs if states do not implement 

effective enforcement programs within 

five years of findings of inadequacy (see 

proposed section 198.53). The potential 

reduction in grant funding will provide 

incentive to the state to address 

enforcement gaps in the excavation 

damage prevention laws and programs. 

PHMSA specifically requests comments 

on the adequacy of these incentives and 

the need for additional incentives for 

states to enforce their own excavation 

damage prevention laws. 

Currently, states are reevaluating their 

pipeline safety laws. Several states, 

including Washington and Maryland, 

made significant changes to their 

damage prevention laws subsequent to 

the ANPRM on this subject. In addition, 

the following states are in various stages 

of legislative efforts to incorporate 

effective enforcement into their laws 

(these efforts range from stakeholder 

meetings, to building support for 

drafting legislation, to actually having a 

bill before the state legislatures): 

California, Ohio, Michigan, Alabama, 

Mississippi, Montana, Florida, 

Kentucky, and Delaware. 

C. Federal Excavation Standard 

This NPRM proposes to add a new 

Part 196 to Title 49, Code of Federal 

Regulations that prescribes standards for 

excavators to follow in conducting 

excavation activities in areas where 

underground gas or hazardous liquid 

pipelines may be located and the 

administrative enforcement process to 

address violations of the standards. The 

Federal requirements PHMSA is 

proposing to be contained in this Part 

are the standards that PHMSA would 

enforce against excavators in states 

determined to have inadequate damage 

prevention law enforcement programs 

pursuant to the procedures proposed in 

this rulemaking. The standard that 

PHMSA is proposing are effectively 

equivalent to the standard in 49 U.S.C. 

60114(d) which states: 

(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 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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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. 

The NPRM proposes to add new 

excavation standards that include 

requirements to use an available onecall system before digging, to excavate 

with proper regard for location 

information or markings established by 

a pipeline operator, to promptly report 

any damage to the pipeline operator, 

and to report any emergency release of 

hazardous products to appropriate 

authorities by calling 911 immediately. 

PHMSA is seeking comment in this 

NPRM on whether or not it should 

establish an upper limit on the time 

frame to report any damage to pipeline 

operators, such as two hours following 

discovery. 

D. Adjudication Process for Excavators 

PHMSA is proposing to use the same 

adjudication process established for 

pipeline safety violations set forth in 49 

CFR Part 190. Under this process, 

excavators would have the same right as 

pipeline operators to: Receive written 

notice of the allegations including a 

description of the factual evidence the 

allegations are based on, file a written 

response to the allegations, request a 

hearing, be represented by counsel if the 

excavator so chooses, examine the 

evidence, submit relevant information 

and call witnesses on the excavator’s 

behalf, and otherwise contest the 

allegations of violation. PHMSA 

proposes that hearings would be held as 

they are now for pipeline operators at 

one of PHMSA’s regional offices or via 

teleconference. An excavator would also 

have the same opportunity as pipeline 

operators to petition for reconsideration 

of the agency’s administrative decision. 

Judicial review of the final agency 

action would be available to the same 

extent it is available to a pipeline 

operator. 

PHMSA invites further comments on 

the adjudication process for excavators. 

In particular, 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 an 

administrative 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 informal 

enough to be efficient and at the same 

time providing enough formality that 

excavators feel the process is fair and 

their ‘‘due process are maintained’’? 

E. State Base Grant 

PHMSA already conducts annual 

program evaluations and certification 

reviews of state pipeline safety 

programs. PHMSA would also conduct 

annual reviews of state excavation 

damage prevention law enforcement 

programs. A state that fails to establish 

an adequate enforcement program in 

accordance with 49 CFR 198.55 within 

five years of the finding of inadequacy 

may be subject to reduced grant funding 

established under 49 U.S.C. 60107. 

PHMSA would factor the findings from 

the annual review of the excavation 

damage prevention enforcement 

program into the 49 U.S.C. 60107 grant 

funding distribution to state pipeline 

safety programs. The amount of the 

reduction in 49 U.S.C. 60107 grant 

funding would not exceed 10 percent of 

prior year funding. If a state fails to 

implement an adequate enforcement 

program within five years of a finding 

of inadequacy, the Governor of that state 

may petition the Administrator of 

PHMSA, in writing, for a temporary 

waiver of the penalty, provided the 

petition includes a clear plan of action 

and timeline for achieving program 

adequacy. PHMSA would use the 

proposed 49 CFR 198.55 criteria to 

evaluate the effectiveness of a state’s 

excavation damage prevention 

enforcement program. 

IV. Analysis of Public Comments on the 

ANPRM 

PHMSA received comments from 39 

organizations and 152 individuals, 

including: 

• Associations representing pipeline 

operators (trade associations) 

Æ The American Gas Association 

(AGA) 

Æ The American Petroleum Institute 

(API) 

Æ The American Public Gas 

Association (APGA) 

Æ The Association of Oil Pipelines 

(AOPL) 

Æ The Interstate Natural Gas 

Association of America (INGAA) 

Æ The Texas Pipeline Association 

(TPA) 

Æ The Texas Pipeline Safety Coalition 

(TPSC) 

Æ The Texas Oil and Gas Association 

(TxOGA) 

• Transmission and distribution 

pipeline companies 

Æ Atlanta Gas Light Resources (AGL) 

Æ Baltimore Gas and Electric 

Company (BGE) 

Æ CenterPoint Energy 

Æ El Paso Pipeline Group (EPPG) 

Æ LDH Energy Pipeline, L.P. 

Æ Marathon Pipeline 

Æ Michigan Consolidated Gas 

Company 

Æ MidAmerican Energy Company 

Æ Nicor Gas 

Æ Northern Natural Gas Company 

Æ Paiute Pipeline 

Æ Panhandle Energy 

Æ San Diego Gas & Electric 

Æ Southern California Gas Company 

Æ Spectra Energy Transmission 

• The National Association of 

Pipeline Safety Representatives 

(NAPSR) 

• Individual state pipeline regulatory 

authorities 

Æ The Florida Public Service 

Commission 

Æ The Minnesota Office of Pipeline 

Safety 

Æ The Missouri Public Service 

Commission (PSC) 

Æ The Public Utilities Commission of 

Ohio (PUCO) 

Æ The Tennessee Regulatory 

Authority (TRA) excavator contractor 

associations 

Æ The Associated General Contractors 

of America (AGC) 

Æ The Associated General Contractors 

of Texas (AGC of Texas) 

Æ The National Utility Contractor 

Association (NUCA) 

Æ The Wisconsin Underground 

Contractors Association (WUCA) 

• One-call organizations 

Æ Joint Utility Locating Information 

for Excavators, Inc. (JULIE) 

Æ GulfSafe 

• A utilities locating service 

Æ The United States Infrastructure 

Corporation (USIC) 

• A local/regional damage prevention 

council 

Æ The Greater Chicago Damage 

Prevention Council 

• A citizens’ interest group 

Æ The Pipeline Safety Trust (PST) 

• The Association of American 

Railroads 

• An excavation equipment 

manufacturer 

• 154 individuals, 145 of whom 

submitted substantially similar to 

comments submitted by excavation 

contractors. 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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To a substantial extent, the comments 

supported the need for this rulemaking. 

When a pipeline is struck during an 

excavation project, not only is the 

public put at risk and energy supplies 

potentially disrupted, but the excavator 

personnel are also at risk of serious 

injury or even death. In the ANPRM, 

PHMSA posed some specific questions 

related to state excavation damage 

prevention programs. Many comments 

received were general to the entire 

ANPRM and others addressed specific 

sections and content of the ANPRM. 

The general comments and comments 

related to specific sections of the 

ANPRM are addressed individually 

below. 

Many commenters addressed the 

concept of the questions, as was 

intended. Others addressed the 

questions as they were deemed to apply 

currently to specific state damage 

prevention (SDP) programs. 

Additionally, many comments received 

are outside the scope of the proposed 

regulatory changes. Many of the 

comments were to the effect that 

PHMSA enforcement should be applied 

to all underground utilities. For 

example, NAPSR, the Missouri Public 

Service Commission, AGA, and several 

pipeline operators commented that any 

rulemaking language should clearly 

specify the scope to which it applies 

and that if PHMSA seeks to expand its 

enforcement authority outside of 

pipeline matters, its legal authority to 

do so should be explained. While 

commenters believe that many states 

will benefit from broadening their 

damage prevention programs beyond 

pipelines to include other underground 

utilities, PHMSA’s authority does not 

extend beyond pipeline facilities and, as 

defined in the PIPES Act, excavators 

under certain specified conditions. 

Federal pipeline safety regulations 

require gas and hazardous liquid 

pipeline operators to have excavation 

damage prevention programs in place to 

protect their pipelines. These 

regulations require pipeline operators to 

participate in state one-call systems and 

enable PHMSA enforcement against 

regulated pipeline operators who fail to 

comply with applicable locating and 

marking requirements, including 

situations where their pipelines are 

damaged by improper excavation 

activities of the pipeline operator or its 

contractors (either excavating or 

locating contractors). 

General Comments 

Involve All Stakeholders in This 

Rulemaking Process 

A number of comments supported 

PHMSA’s approach of involving all 

stakeholders in this rulemaking process. 

Several commenters, including NAPSR, 

Missouri Public Service Commission, 

INGAA, and EPPG commented that 

beyond reviewing the written 

comments, PHMSA should conduct 

public meetings on this topic, and 

should lead open and on-going 

discussions of the issues as they arise, 

through the most appropriate venues. 

They noted that public meetings would 

allow all stakeholder groups to present 

their viewpoints and hear similar 

presentations from others, thus 

providing an effective means of 

gathering additional information that 

would assist PHMSA in developing 

standards for auditing the adequacy of 

states’ excavation damage prevention 

enforcement programs and in issuing an 

effective and practicable rulemaking. 

NAPSR especially wants to be involved 

in the rulemaking process. 

Response 

PHMSA recognizes the value of open 

and ongoing discussions related to this 

rulemaking, and, therefore, took the 

optional step of publishing an ANPRM 

in October 2009 to provide information 

to and solicit feedback from 

stakeholders. PHMSA also conducted a 

meeting with NAPSR to discuss 

NAPSR’s position and concerns on the 

issues identified in the ANPRM. The 

minutes from the meeting are available 

on the ANPRM docket (http:// 

www.regulations.gov, Docket ID 

PHMSA–2009–0192). PHMSA does not 

intend to hold public meetings related 

to this rulemaking after the NPRM is 

published. As an alternative, PHMSA 

will post a recorded presentation 

pertaining to the NPRM on the PHMSA 

Web site. The recorded presentation 

will provide an overview of the 

proposed rule and encourage viewers to 

read and comment on the NPRM. 

Federal Administrative Enforcement 

USIC Locating Services, API, AOPL, 

INGAA, and several pipeline operators 

commented that PHMSA should 

develop the necessary processes and 

procedures and should not hesitate to 

use the Federal administrative 

enforcement authority granted by 

Congress to enforce excavation damage 

prevention laws where state 

enforcement programs are determined to 

be inadequate. They consider it to be in 

the public’s best interest and that a key 

element of an effective excavation 

damage prevention program is 

enforcement action against excavators 

that do not follow the one-call laws, and 

that without enforcement, there is little 

incentive for excavators to comply with 

one-call laws. However, AGC, API and 

AOPL commented that Federal 

administrative enforcement should not 

be permanent. It should only last as long 

as necessary to ensure the state achieves 

a successful enforcement program. They 

noted that PHMSA should reserve 

enforcement to only those specific 

circumstances permitted by law when a 

state fails to meet the test for adequate 

enforcement of its excavation damage 

prevention laws. They contended that 

where strong and effective state 

excavation damage prevention laws and 

enforcement programs exist, PHMSA 

need not and should not exert its 

Federal authority lest a costly, 

potentially inefficient layer of Federal 

oversight result. 

Conversely, WUCA commented that 

all enforcement of state excavation 

damage prevention laws should be at a 

state or local level and that the Federal 

Government should not be involved at 

all in enforcement. WUCA commented 

that excavators who damage 

underground facilities already pay for 

‘‘at fault’’ damages and can be removed 

from bid lists for specific utilities. They 

consider free enterprise to the best 

‘‘enforcement’’ available and want no 

Federal Government involvement, and 

prefer, at most, state enforcement. 

JULIE, commented that it would seem 

contradictory that a particular state’s 

excavation damage prevention 

enforcement program could be ‘‘taken 

over’’ by an agency (i.e., PHMSA) whose 

jurisdiction is limited solely to 

pipelines. JULIE suggested that PHMSA 

limit itself to providing assistance to 

state excavation damage prevention 

systems to help them improve 

enforcement of state excavation damage 

prevention laws. 

Response 

Congress provided that PHMSA 

undertake this rulemaking action in 

Section 2 of the PIPES Act. The PIPES 

Act requires that PHMSA must 

determine that a state’s excavation 

damage prevention law enforcement 

program is inadequate before PHMSA 

may take enforcement action for a 

violation by an excavator occurring in 

that state. Thus, PHMSA cannot take 

enforcement actions against excavators 

in states determined by PHMSA to have 

adequate enforcement programs. 

PHMSA’s goal is to encourage states to 

implement adequate enforcement 

programs. Federal administrative 

enforcement is not intended to be the 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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primary means of pipeline damage 

prevention enforcement and is instead 

intended to provide incentives for states 

to develop and implement adequate 

programs and serve as a backstop in 

states with inadequate programs. 

State Program Evaluation Should 

Include an Appeals Process 

Several commenters noted that the 

process for determining whether a 

state’s enforcement of its excavation 

damage prevention law is ‘‘inadequate’’ 

should contain an appeals process and 

timeframe by which PHMSA needs to 

respond to appeals. Northern Natural 

Gas commented that the rulemaking 

should provide for an arbitration 

element when there is a dispute over a 

state’s enforcement program, and that 

the state should be allowed an 

opportunity to improve its excavation 

damage prevention program if PHMSA 

determines that the program does not 

meet the minimum Federal 

requirements. 

Response 

This NPRM proposes the 

administrative process by which a state 

may contest a notice of inadequacy from 

PHMSA. Additionally, states deemed to 

have inadequate excavation damage 

prevention law enforcement programs 

will have the opportunity to enhance 

their programs and to demonstrate their 

adequacy through periodic reviews. 

Programs PHMSA previously 

determined to be inadequate may later 

be found adequate if a state takes steps 

to implement an effective enforcement 

program (see proposed Subpart D of Part 

198). 

Minimum Damage Prevention Program 

Requirements 

API, INGAA, several pipeline 

operators, and three Texas pipeline 

associations commented that PHMSA 

should establish clear, well-defined, and 

consistent minimum criteria for 

determining the adequacy of acceptable 

state excavation damage prevention 

laws and programs. API, AOPL and 

Nicor commented that the fundamental 

minimum requirements that should 

apply in evaluating state programs are 

that all excavators, including state 

agencies and municipalities: (1) Use 

state one-call systems prior to 

excavation, (2) follow location 

information or markings established by 

pipeline operators, (3) report all 

excavation damage to pipeline 

operators, and (4) immediately notify 

emergency responders by calling 911 

when excavation damage results in a 

release of pipeline products. 

AGA and several pipeline operators 

commented that PHMSA should keep 

the overall review process and the 

criteria for determining the adequacy of 

state programs as simple as possible. 

They noted that PHMSA’s evaluation of 

the adequacy of states’ excavation 

damage prevention programs should be 

based upon a relatively short list of 

elements. They also noted that PHMSA 

will likely discover that few states have 

an excavation damage prevention 

program that would clearly meet all or 

even most of the criteria listed in the 

ANPRM. 

Response 

PHMSA agrees that the criteria for 

evaluating the adequacy of state 

excavation damage prevention law 

enforcement programs should be clear, 

well-defined, consistent, and as simple 

as possible. These criteria helped guide 

development of the criteria proposed in 

this NPRM. PHMSA seeks comments on 

these criteria. 

PHMSA Should Encourage States To 

Implement and Enforce Effective 

Damage Prevention Laws 

Many commenters, including the 

AGC, API, AOPL, INGAA, state 

regulatory agencies and many 

individual pipeline operators, agree 

with PHMSA’s goal of encouraging 

states to implement, maintain and 

enforce effective excavation damage 

prevention laws. They encouraged 

PHMSA to move forward promptly to 

issue a final rule to accomplish the 

objective set forth in the ANPRM of 

promoting better, more effective 

enforcement of state excavation damage 

prevention laws. The NUCA and several 

pipeline trade associations recognized 

that PHMSA’s jurisdiction is limited to 

gas and hazardous liquid pipelines. 

They commented, however, that this 

regulation’s influence on how state 

authorities adjust their programs and 

enforcement practices to protect all 

underground facilities will be 

significant, and that addressing 

enforcement in a balanced and 

comprehensive manner in the proposed 

rule will facilitate the entire process. 

Three Texas pipeline associations 

suggested that standards consistent with 

key aspects of the Common Ground 

Alliance Best Practices should be 

adopted by states to ensure the scope of 

their enforcement programs are 

adequate. They noted those key 

provisions include tolerance zone, 

positive response, due care in 

excavating, and reporting damages. 

Response 

As noted, PHMSA supports effective 

state excavation damage prevention law 

enforcement to protect pipelines. 

PHMSA strongly believes that 

individual states should retain the 

primary responsibility to enforce their 

excavation damage prevention laws 

effectively. The proposed regulations do 

not conflict with the best practices 

established by the Common Ground 

Alliance. 

Apply Enforcement to All Excavators— 

No Exemptions 

Several respondents, including NUCA 

and EPPG, commented that state 

excavation damage prevention laws and 

enforcement processes should apply to 

pipeline operator ‘‘in-house’’ and 

contractor excavators. They noted that 

‘‘first-party’’ (facility operators) and 

‘‘second-party’’ (operator contractor) 

damages, although often unreported, 

carry the same consequences as pipeline 

damages caused by landscapers, home 

owners, and other ‘‘third-party’’ 

excavators. 

AGA and several pipeline operators 

noted that the term ‘‘excavator’’ is used 

throughout the ANPRM but that it was 

not clear what constitutes an excavator 

or excavation, thus clarification is 

needed. 

NUCA, API, AOPL, and several 

pipeline operators commented that the 

scope of enforcement for all programs, 

Federal and state, should encompass all 

excavators, including state agencies, 

municipalities, counties, parishes, 

agricultural entities, and railroads. They 

believe that state law should require all 

excavators to call the one-call center 

and request facilities to be located and 

marked before digging, and that the 

exclusion of a category of excavator 

should be considered a basis for 

PHMSA regulation and direct 

enforcement. 

Response 

PHMSA agrees that state excavation 

damage prevention laws and 

enforcement should apply to all 

excavators, including pipeline operators 

and their contract excavators and 

locators. Current Federal pipeline safety 

regulations at 49 CFR 192.614 and 

195.442, require gas and hazardous 

liquid pipeline operators, respectively, 

to comply with specific excavation 

damage prevention requirements. 

PHMSA and its state partners have 

authority to enforce these regulations 

against pipeline operators and can 

pursue enforcement action against 

pipeline operators when an operator’s 

employees or its contractors, including 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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excavators and locators, violate the 

regulations. 

PHMSA also agrees that, in general, 

exemptions of categories of excavators 

from state excavation damage 

prevention laws can be problematic 

because exempt excavators can damage 

underground utilities. However, some 

exemptions may be justifiable in some 

states, especially where substantiated by 

data (e.g., Virginia’s exemptions for 

VDOT). States are ultimately 

responsible for establishing their own 

excavation damage prevention laws. 

Under this proposed rule, only 

homeowners using hand tools, as 

opposed to than mechanized excavating 

equipment, on their own property are 

exempt from Federal administrative 

enforcement action. All other excavators 

would be subject to Federal enforcement 

in a state PHMSA deems to have an 

inadequate enforcement program, 

regardless of an excavator’s exemption 

status under that state’s law. 

Fines and Penalties 

Many commenters acknowledged that 

the use and application of civil 

penalties is necessary as an effective 

tool to deter violations of state 

excavation damage prevention laws that 

could lead to pipeline damage. 

Comments also indicated that civil 

penalties should be applied at an 

appropriate level to achieve such 

deterrence, including the escalation of 

fines and penalties for repeat offenders. 

Northern Natural Gas and others agreed 

that a responsible state agency should 

have the ability to levy fines and civil 

penalties similar to the Federal 

maximums. However, several 

commenters, including PUCO, noted 

that PHMSA could clarify the maximum 

civil penalties PHMSA will require for 

a state program to be determined 

‘‘adequate.’’ Additionally, some 

commented that education and training 

should be considered in lieu of fines 

and penalties for minor violations. 

Response 

PHMSA is not proposing a specific 

penalty amount or schedule as a 

criterion in determining the adequacy of 

state excavation damage prevention law 

enforcement programs. However, state 

penalty levels should be sufficient to 

deter violations. PHMSA will review 

state enforcement records on a state-bystate basis. 

Clarification of Terminology and Parties 

Subject to PHMSA Enforcement Action 

Several comments asked for 

clarification of some terminology used 

in the ANPRM or, in some cases, 

clarification of the scope of the 

rulemaking. For example, WUCA asked 

for clarification of where enforcement 

would start—with gas mains or service 

lines or both. PUCO and some gas 

pipeline operators asked that the term 

‘‘incident’’ be clarified. Is it as defined 

in 49 CFR § 191.3? Does it mean only 

incidents reportable under the 

applicable Federal or state law? Or, does 

it mean every event wherein damage 

occurs, regardless of the magnitude or 

consequences? PUCO also commented 

that the definition and implications of a 

state program designation of ‘‘nominally 

adequate’’ need to be clarified. 

NAPSR asked what ‘‘available’’ 

means, regarding the question in the 

ANPRM ‘‘Are records of investigations 

and enforcement available to PHMSA?’’ 

Additionally, NAPSR asked for 

clarification on the terms ‘‘reasonable 

care’’ and ‘‘timely.’’ Other terms noted 

for clarification include: all excavation 

damage, damage, incident, excavation, 

and excavator. 

Response 

This rulemaking applies to all 

excavators and excavation activities that 

affect any gas or hazardous liquid 

pipelines subject to the pipeline safety 

laws in 49 U.S.C. 60101 et seq., 

including gathering, transmission, and 

distribution pipelines (including gas 

mains and service lines). Those terms 

are defined in existing laws and 

regulations. PHMSA will retain the 

discretion to determine if enforcement 

action is necessary on a case-by-case 

basis. In response to commenters’ 

concerns, PHMSA has taken care to 

clearly define terms in this regulation. 

Complaint-Based Enforcement Process 

Centerpoint Energy suggested a 

‘‘complaint-based’’ process in which a 

pipeline operator or an excavator can 

file a complaint to petition for 

enforcement actions by the state, or to 

petition PHMSA to review the adequacy 

of the state’s enforcement process. 

Centerpoint expressed the view that 

PHMSA should only initiate 

enforcement actions upon receipt of 

filed complaints and that one allegation 

in each complaint would have to be that 

the state’s enforcement process is not 

adequate to prevent repeated violations. 

Centerpoint would prefer that the state 

could intervene as an interested party 

and dispute the claim and PHMSA 

would have to conduct a hearing and 

require specific findings concerning 

what aspects of the state’s enforcement 

efforts were inadequate. Centerpoint 

considers that findings of inadequacy 

would relieve the complaining parties 

from the duty to resolve disputes at the 

state level until the state resolved those 

issues of inadequacy. Centerpoint 

commented that costs for PHMSA could 

be assessed to the losing party or split 

between the two. 

Centerpoint commented that a 

complaint-based process would allow 

the operator, excavator, the state agency 

and PHMSA to direct time and 

resources where they are most needed. 

Centerpoint believes that a pipeline 

operator is in the best position to 

determine when an excavator is 

willfully ignoring the excavation 

damage prevention program and will 

likely continue to do so in spite of any 

actions the operator takes. They also 

consider that an operator can collect 

evidence to show it was unable to 

change excavator behavior and that 

punitive enforcement is needed, and to 

show that Federal administrative 

enforcement is necessary because a 

state’s enforcement efforts were not 

adequate to affect the behavior of the 

excavators. Similarly, Centerpoint 

comments that excavators should be 

able to file complaints against operators 

that will not respond to locate requests 

or that consistently do a poor job of 

locating their facilities. 

Response 

PHMSA proposes to use the criteria 

and procedures proposed in this NPRM 

to assess the adequacy of state 

excavation damage prevention law 

enforcement programs. Once those 

evaluations are complete, PHMSA will 

determine, on a state-by-state basis, if 

Federal administrative enforcement 

action is necessary in states deemed by 

PHMSA to have inadequate enforcement 

programs. Under § 198.55, PHMSA 

would evaluate the state enforcement 

program in its entirety, but may also 

consider individual enforcement actions 

taken by a state where warranted. 

PHMSA may become aware of a 

potential need for Federal 

administrative enforcement through a 

variety of mechanisms, including 

notifications of reportable incidents, 

instances of a serious and recurring 

nature where excavators fail to comply 

with the Federal requirements proposed 

in this NPRM, or by other means, 

including complaints. PHMSA requests 

comments on ways or mechanisms that 

it can utilize to become aware of these 

incidents. PHMSA believes it is 

important to retain flexibility in the 

process used to make decisions 

concerning the use of Federal 

administrative enforcement authority. 

PHMSA will only conduct enforcement 

in states deemed to have inadequate 

enforcement programs in accordance 

with the criteria outlined in this NPRM. 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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Evaluate Enforcement Programs, Not 

Individual Enforcement Actions 

INGAA and others commented that 

the standards and procedures for 

adequacy proceedings should be 

directed toward evaluating state 

enforcement programs, not specific 

enforcement actions. INGAA holds that 

applying adequacy standards and 

procedures to individual enforcement 

actions invites selective PHMSA 

involvement contrary to vesting primary 

enforcement responsibility with the 

states. Similarly, and consistent with 

using adequacy proceedings to examine 

programs instead of decisions, INGAA 

commented that PHMSA should specify 

that inadequacy findings are not 

retroactive—that a finding of 

inadequacy should not be used to revisit 

and alter a state’s enforcement findings 

and sanctions. 

Response 

In determining a state program’s 

adequacy, PHMSA would evaluate a 

state’s overall damage prevention 

enforcement program, but may evaluate 

past specific state enforcement actions 

during the evaluation process. PHMSA 

did consider a system of addressing the 

adequacy of state enforcement programs 

on an incident-by-incident basis instead 

of through an annual review of the state 

enforcement programs. Under that 

scenario, upon determining that 

enforcement action in a given incident 

may deter future incidents, PHMSA 

would assess the state’s ability to 

conduct effective enforcement in that 

particular incident and proceed with 

enforcement action if PHMSA found the 

state program inadequate. However, 

PHMSA believes that such a system 

would be inefficient and 

administratively burdensome and that 

an annual review may be more 

appropriate. PHMSA seeks comment on 

this issue. 

Federal Funding 

API, AOPL, TRA and WUCA 

commented that PHMSA should 

continue its assistance to state agencies 

seeking to develop and enforce effective 

excavation damage prevention programs 

through grants and other support 

mechanisms. They noted that this 

assistance should include providing 

quantitative analyses that demonstrate 

the effectiveness of existing excavation 

damage prevention programs and 

developing incentives to ensure that 

agencies and other stakeholders in the 

states cooperate in these efforts. TRA 

went on to comment that a state agency 

that is making a concerted effort to make 

changes to its excavation damage 

prevention law to meet the nine 

elements should not be punished by 

having its level of funding decreased. 

PUCO was concerned that changes in 

how PHMSA evaluates state excavation 

damage prevention programs could 

result in a designation of a program 

being ‘‘inadequate’’ or ‘‘nominally 

adequate,’’ and that such a designation 

may affect funding and ultimately gas 

pipeline safety. PUCO commented that 

despite the stated assurance in the 

ANPRM that funding for the 

development and implementation of 

excavation damage prevention programs 

is ‘‘intended to be in addition to, and 

independent of existing Federal funding 

of the state pipeline safety programs,’’ 

the implications of designation of 

‘‘inadequate’’ or ‘‘nominally adequate’’ 

on a state excavation damage prevention 

program’s current funding is not 

addressed. PUCO commented that it 

would be beneficial for PHMSA to 

describe whether and how state funding 

for the gas pipeline safety program will 

be affected by a determination of 

‘‘inadequate’’ or ‘‘nominally adequate.’’ 

The three Texas pipeline associations 

noted that PHMSA should evaluate the 

adequacy of state programs in a similar 

fashion to that of PHMSA’s existing 

state program evaluation. They 

commented that a state’s annual 

program performance evaluation could 

result in a reward of additional grant 

monies or a penalty of a reduction in 

grant moneys based on PHMSA’s 

excavation damage prevention law 

enforcement program assessment, to a 

greater degree than is currently 

practiced. 

Response 

PHMSA intends to continue its 

support of states seeking to develop and 

enforce effective excavation damage 

prevention programs through grants and 

other means. PHMSA has undertaken a 

variety of both qualitative and 

quantitative initiatives that demonstrate 

the effectiveness of existing state 

excavation damage prevention 

programs. These initiatives are 

described in the ANPRM pertaining to 

this rulemaking (http://www.

regulations.gov, Docket ID PHMSA– 

2009–0192). When evaluating a state’s 

overall pipeline safety program, PHMSA 

will continue to consider the extent to 

which a state has implemented an 

effective excavation damage prevention 

enforcement program. The effect on base 

grant funding of a declaration that a 

state’s excavation damage prevention 

enforcement program is inadequate is 

proposed in this NPRM. 

State Authority for Interstate Pipeline 

Operators 

Paiute Pipeline and three Texas 

pipeline associations submitted 

comments regarding how interstate 

pipeline operators are expected to be 

treated under a state’s excavation 

damage prevention program and noted 

that PHMSA should provide 

clarification in this regard. The issue 

they noted is whether the operator is 

treated as an excavator or as an operator 

and whether state agencies have the 

authority to enforce state excavation 

damage prevention standards on 

interstate pipeline operators or on 

excavators working near interstate 

pipelines. They consider this to be 

especially the case for states that have 

not applied for, or been granted, 

interstate agent status for natural gas 

and/or hazardous liquid lines. Paiute 

commented that authority for inspection 

and enforcement of interstate pipelines 

pursuant to Federal regulations should 

remain with PHMSA, and that in states 

that don’t have interstate pipeline 

inspection and enforcement authority, 

the state should treat an interstate 

pipeline as an excavator, not a pipeline 

operator. 

The three Texas pipeline associations 

commented that there should be a 

process for states to clarify that they 

have the ability to enforce state 

excavation damage prevention 

standards with regard to interstate 

pipelines, through a statutory change or 

through a Memorandum of 

Understanding between PHMSA and the 

states when certain program standards 

are met. Spectra Energy commented that 

the existing enforcement process in 49 

CFR Part 190 should continue to be 

applied to interstate pipeline operators. 

Response 

States that have an annual 

certification under 49 U.S.C. 60105 have 

authority to regulate the intrastate 

pipelines in that state covered by the 

certification. States that have an 

interstate agent agreement under 49 

U.S.C. 60106 may conduct inspections 

and investigations on interstate 

pipelines, but must refer any alleged 

violations on interstate pipelines to 

PHMSA for enforcement action. While 

states are generally preempted from 

establishing or enforcing safety 

standards for interstate pipelines, 49 

U.S.C. 60104 contains a specific 

provision that allows a state’s pipeline 

damage prevention one-call program to 

apply to interstate pipelines as well as 

intrastate pipelines. 

Accordingly, all excavators and 

pipeline operators in a certified state are 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19810 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

generally subject to the requirements of 

that state’s excavation damage 

prevention laws (except when explicitly 

exempted by state law). The 

applicability of excavation damage 

prevention requirements within a state 

is determined by that state’s law. Under 

the provisions included in this NPRM, 

state excavation damage prevention 

laws will continue to be enforced as 

specified by state laws except when 

PHMSA deems a state’s enforcement 

program inadequate. In that case, 

PHMSA proposes to enforce the Federal 

requirements established by this 

rulemaking against excavators in that 

state who fail to comply with the 

Federal requirements. Regardless of the 

status of a state’s damage prevention 

program, PHMSA is proposing to retain 

its existing enforcement authority over 

pipeline operators and will continue to 

enforce the requirements related to 

excavation damage prevention (49 CFR 

192.614 and 195.442) for pipeline 

operators it regulates. 

Model Programs 

NAPSR, Missouri PSC, AGA and 

several pipeline operators noted that 

care should be exercised about urging 

states to adopt concepts of what a 

‘‘model’’ excavation damage prevention 

program should be. They cautioned that 

PHMSA should be open-minded in its 

review of state programs, allow for 

alternate approaches for damage 

investigations, and not have 

preconceived ideas on what an effective 

state excavation damage prevention 

program should include. AGA and 

several operators noted that PHMSA 

should avoid taking a prescriptive 

approach on the overall review of the 

state’s excavation damage prevention 

enforcement process. They suggested 

that PHMSA should adopt a holistic and 

data-driven approach to adequacy 

assessment. For a state with 

documented success at excavation 

damage prevention, compliance with 

specific PIPES Act criteria should be at 

most a basis for suggested improvement. 

They noted that a state program should 

never be deemed inadequate solely 

because it did not meet all of these 

criteria. 

NAPSR noted that depending on how 

its proposed provisions are interpreted, 

a program such as the one apparently 

envisioned by PHMSA in the ANPRM 

could be burdensome and costly. 

NAPSR noted that PHMSA should not 

presume that states can or will readily 

change their laws in response to Federal 

initiatives, and should be mindful of 

unintended consequences that may arise 

upon re-opening the existing state law 

to further amendments. NAPSR stated 

that it is likely that if onerous 

provisions are adopted in the proposed 

rule, some states will simply defer to 

Federal administrative enforcement, in 

which case NAPSR expects PHMSA will 

undertake every action it would 

otherwise expect a state to perform. 

API and AOPL commented that state 

excavation damage prevention program 

evaluations should be based primarily 

on the effectiveness of the overall 

programs in place and allow for 

flexibility in the statutory or regulatory 

language. They noted, for example, a 

state program may be considered 

adequate if it has met the fundamental 

requirements described in the 

introduction, but failed to meet other 

program elements required by PHMSA, 

as long as the state can demonstrate 

overall program effectiveness. They 

consider that an excavation damage 

prevention program that establishes a 

generally acceptable baseline should 

provide an objective measuring stick. 

Panhandle Energy commented that a 

template or recommended practice for 

enforcement of excavation safety is 

required, so that both PHMSA and the 

states have a clear understanding of the 

requirements, before any program 

evaluation takes place. 

Response 

As noted, PHMSA’s goal is to provide 

incentives to states to develop and 

implement effective excavation damage 

prevention and enforcement programs. 

PHMSA believes there are some 

fundamental components of effective 

state enforcement programs. For 

example, an adequate enforcement 

program requires, at a minimum, the 

existence of statutory enforcement 

authority that includes civil penalties 

for violations and the use of that 

authority. The criteria for evaluating 

state enforcement programs proposed in 

this NPRM address those fundamental 

components (see proposed section 

198.55). 

Evaluate the Entire State Program 

NUCA commented that PHMSA 

should evaluate each state’s excavation 

damage prevention program as a whole. 

Even if thorough enforcement exists in 

a particular state, if the program itself 

does not adequately address the nine 

elements of an effective excavation 

damage prevention program, the entire 

program itself may be inadequate. If a 

state’s excavation damage prevention 

program and enforcement practices 

were to focus exclusively on excavator 

responsibilities, that program is not 

fully addressing excavation damage 

prevention. AGA, APGA, and several 

pipeline operators commented that for a 

state to have a documented excavation 

damage prevention program alone is not 

enough; it is critical for the state agency 

to have the resources and the incentive 

to exercise its authority, when 

necessary. 

In this regard, NAPSR commented 

that an important factor to consider in 

assessing the overall adequacy of a state 

excavation damage prevention program 

would be the relative weight given to 

the various proposed individual 

assessment factors listed in the ANPRM. 

NAPSR noted, for example, that 

enforcement of excavation damage 

prevention laws has been shown to be 

an essential element of a successful 

excavation damage prevention program. 

The issuance of appropriate civil 

penalties has been a demonstrated 

deterrent to non-compliant behavior. 

When assessing the adequacy of 

excavation damage prevention 

programs, this factor could be given a 

heavier weight than, for example, 

exempting certain parties who perform 

less risky excavations. Similarly, APGA 

commented that some of the assessment 

factors should receive more weighting 

than others and that weighting should 

be discussed with the affected parties. 

APGA noted that the ANPRM is a good 

start in opening a dialogue with the 

affected public, industry and state 

governments. 

With regard to weighting the 

assessment factors, AGA commented 

that the most important criteria are the 

ones involving timely reporting of 

pipeline damages, a universal 

requirement for all parties to notify the 

one-call center prior to excavation, 

establishment of a single agency 

responsible for oversight of excavation 

damage prevention laws, and an 

effective enforcement process. AGA 

noted that the list of criteria listed in the 

ANPRM appears thorough, but how the 

criteria are weighted and actually 

evaluated is open to several different 

approaches. 

Michigan Consolidated Gas 

commented that consideration should 

be given to states that are working on 

revising their state laws. 

Response 

Effective excavation damage 

prevention law enforcement is critical to 

an effective excavation damage 

prevention program, but enforcement is 

just one component of an effective 

program. PHMSA has undertaken 

several efforts to document state 

excavation damage prevention programs 

in their entirety. Information regarding 

those efforts is available at http:// 

primis.phmsa.dot.gov/comm./


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damagepreventionsummary.htm. 

However, the PIPES Act states: 

‘‘(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.’’ 

While evaluating state excavation 

damage prevention programs in their 

entirety is part of the annual review of 

a state’s overall pipeline safety program 

performed by PHMSA in connection 

with the state grant process, this 

proposed rulemaking is focused solely 

on the enforcement component. In this 

NPRM, PHMSA has proposed the 

criteria for evaluating state excavation 

damage prevention law enforcement 

programs. 

PHMSA does not propose to weight 

the criteria used in evaluating state 

excavation damage prevention law 

enforcement programs. Weighting the 

criteria could create an overlyprescriptive set of criteria. PHMSA 

believes the proposed criteria are simple 

enough to not warrant a specific scoring 

or weighting method. PHMSA 

specifically asks for comments on 

whether it should weight the criteria, 

how the critieria might be weighted, and 

the rationale for weighting the criteria in 

evaluating state excavation damage 

prevention law enforcement programs. 

Evaluation of state enforcement 

programs will pertain to state laws and 

regulations in effect at the time of 

evaluation. PHMSA believes that states 

should have the opportunity to 

demonstrate improvements in their 

enforcement programs and petition 

PHMSA for reevaluation of their 

programs as necessary and appropriate. 

Damage Reporting 

Many commented that they do not 

support reporting all pipeline damages 

as this will create an unnecessary 

burden on the operator, the state, and 

PHMSA. Conversely, Northern Natural 

Gas commented that excavators should 

be required to report all pipeline 

damage to the affected pipeline 

operator. 

Response 

This proposed rulemaking does not 

address requirements for damage 

reporting by pipeline operators. 

However, the reporting of damages that 

provides enough detail for analysis and 

resource allocation is critical in 

developing effective excavation damage 

prevention programs because 

inadequate reporting will result in a 

failure to investigate incidents that 

should be investigated. Therefore, 

PHMSA encourages all states to develop 

effective excavation damage reporting 

requirements. The CGA Damage 

Information Reporting Tool (DIRT) is an 

effective means of collecting data on 

damages to pipelines and other 

underground facilities. This is a 

voluntary filing requirement that can 

assist in the collection of data on 

damages. The data is made available to 

the Federal government, states and the 

public by the CGA. As provided in the 

PIPES Act, this proposed rulemaking 

requires an excavator who causes 

damage to a pipeline facility to report 

the damage to the owner or operator of 

the facility promptly. 

Perform Annual Reviews Only for State 

Enforcement Programs Deemed 

Inadequate 

AGA and several pipeline operators 

commented that annual excavation 

damage prevention program reviews are 

not necessary for those states with 

adequate programs. They noted that it 

would be reasonable for PHMSA to 

establish a five-year review cycle for 

those states. Their basis is that a state’s 

overall program will change minimally 

over the course of a year and that an 

annual audit of every program seems 

unnecessary. From the standpoint of 

administrative efficiency, it would be 

far better for PHMSA to lengthen its 

review cycle for programs found 

adequate after an initial audit, and focus 

its resources on the programs it found 

inadequate or adequate subject to 

specific corrective action. PHMSA 

should only perform annual reviews for 

states found to have a ‘‘nominally 

adequate’’ or inadequate program so that 

these states have the opportunity to 

have their status re-evaluated to identify 

areas for improvement and additional 

emphasis. 

JULIE, Inc. commented that there 

appears to be no probationary period or 

other opportunity for states to improve 

upon PHMSA’s recognized 

‘‘deficiencies’’ prior to PHMSA 

undertaking enforcement actions. 

Response 

PHMSA agrees that resources and 

attention should be focused on state 

excavation damage prevention law 

enforcement programs that are deemed 

inadequate. However, PHMSA proposes 

that all SDP enforcement programs be 

evaluated concurrently with PHMSA’s 

annual state pipeline safety program 

evaluations, or at the request of states as 

appropriate. PHMSA does not believe 

the addition of these evaluations will be 

overly cumbersome. PHMSA also 

proposes that states be given a five-year 

grace period after notification that their 

enforcement programs have been 

deemed inadequate to address 

deficiencies in their programs before 

state pipeline safety base grant funding 

levels are potentially affected. However, 

PHMSA proposes that Federal 

excavation damage prevention 

enforcement may take place at any time 

after a state’s enforcement program is 

deemed inadequate. The process for 

evaluating state enforcement programs 

is described in this NPRM. 

Comments on Section IV Issues on 

Which PHMSA Sought Comment 

In Section IV of the ANPRM, pipeline 

operators, excavators, states and the 

public were urged to consider the 

appropriate procedures for determining 

the adequacy of state excavation damage 

prevention law enforcement programs, 

as well as the need for Federal 

administrative enforcement in the 

absence of an adequate state program. 

PHMSA posed specific questions to 

solicit stakeholder input. These 

included questions related to: 

A. Criteria for Determining the 

Adequacy of SDP Enforcement 

Programs; 

B. Administrative Process; 

C. Federal Requirements for 

Excavators; 

D. Adjudication Process; and 

E. Existing Requirements Applicable 

to Owners and Operators of Pipeline 

Facilities. 

Many of the comments received were 

repetitious of those noted above under 

General Comments. 

A: Criteria for Determining the 

Adequacy of SDP Enforcement 

Programs 

In Section IV.A of the ANPRM, 

PHMSA noted that ‘‘a threshold 

criterion for determining the adequacy 

of a state’s damage prevention 

enforcement program will be whether 

the state has established and exercised 

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.’’ The ANPRM then listed 13 

items for consideration and comment. 

Following are comments received 

relative to those items: 

Item 1: ‘‘Does state law contain 

requirements for operators to be 

members of and participate in the 

state’s one-call system (similar to 


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19812 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

current federal pipeline safety 

regulations, 49 CFR 192.614 and 49 CFR 

195.442)?’’ 

Several commented that Federal 

pipeline safety regulations adequately 

address this requirement for pipeline 

operators. Several commenters also said 

that each state excavation damage 

prevention program should require all 

underground facilities operators to be 

members of the state’s one-call 

system(s). 

NUCA commented that 

‘‘participation’’ in excavation damage 

prevention includes calling the one-call 

center before excavating. However, 

NUCA also commented that 

underground facility operators being 

members of the appropriate one-call 

center is fundamental to the excavation 

damage prevention process and that 

exemptions only increase the likelihood 

of facility damages. NUCA cites the 

Common Ground Study of One-Call 

Systems and Damage Prevention Best 

Practices, for which ‘‘the underlying 

premise for prevention of damage to 

underground facilities, and the 

foundation for this study, is that all 

underground facility owners/operators 

are members of one-call centers, and 

that it is always best to call before 

excavation.’’ 

Michigan Consolidated Gas 

questioned how the state and/or 

PHMSA would take into account 

operators that do not have the resources, 

equipment, funding, etc., to locate their 

facilities. 

Response 

Sections 192.614 and 195.442 of the 

pipeline safety regulations require 

regulated pipeline operators to be 

members of qualified one-call systems 

in the states in which they operate. All 

states certified to regulate gas operators 

will have adopted § 192.614 allowing 

them to enforce it against the intrastate 

gas operators they regulate. 

Items 2 and 3: ‘‘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, 

municipalities, agricultural entities, 

railroads, and other groups of 

excavators?’’ 

NAPSR commented that the standards 

to which PHMSA would hold a state in 

terms of ‘‘excavation’’ must be 

consistent with the terms used in that 

state’s law. NAPSR noted that there may 

be very legitimate reasons for 

exemptions in a state one-call law. For 

example, agricultural exemptions may 

recognize the total impracticality of 

attempting to include normal farm 

tillage. Others may conclude that the 

risk of an activity is so low that 

regulation is not justified, such as 

opening a grave in a cemetery. Still 

others may be the result of carefully 

crafted legislative compromises to 

achieve passage of one-call legislation, 

the reopening of which could have 

negative consequences. NAPSR also 

noted that 49 U.S.C. 60114(d), which 

lists demolition, excavation, tunneling, 

or construction, or excavation as 

defined in paragraph 192.614(a), is far 

from all-inclusive, in that it seems to 

exclude farm tillage and gardening, and 

perhaps activities such as pipe or cable 

plowing. NAPSR considers that PHMSA 

must determine to what extent certain 

exemptions in individual states will be 

acceptable. 

AGA, along with Nicor, Paiute 

Pipeline and Southwest Gas 

Corporation, agreed that exemptions are 

a critical consideration in evaluating the 

adequacy of state excavation damage 

prevention law enforcement programs. 

They noted that exemptions are 

inherently counter to the entire concept 

of excavation damage prevention being 

a shared responsibility. They noted that 

in several states, exemptions have been 

granted, for example, to state DOTs, 

counties, municipalities, railroads, and 

private land owners. The exemptions 

can take on different forms; some apply 

so that the entity does not need to 

belong to the one-call center for the 

purpose of marking its underground 

facilities, while others allow an entity to 

excavate freely without having to notify 

the one-call center, and still others 

allow certain parties to be free of 

enforcement penalties. The commenting 

organizations hold that exemptions 

often exist only because of private 

interests that enable certain entities to 

escape responsibility in the excavation 

damage prevention process. 

They also commented that 

exemptions serve as an impediment 

when stakeholders attempt to craft new 

legislation for state excavation damage 

prevention laws. They referred to the 

DIMP Phase 1 Report (http:// 

primis.phmsa.dot.gov/dimp/docs/

IntegrityManagementforGasDistribution

Phase1Investigations2005.pdf), in 

commenting that all stakeholders must 

participate in the excavation damage 

prevention process for it to be 

successful. 

Spectra Energy commented that 

PHMSA’s criteria should force states to 

eliminate all exemptions from their onecall requirements. Spectra noted that a 

number of states continue to exempt 

from the one-call requirements certain 

types of excavators, such as agriculture, 

railroads and state/county road 

commissions. Spectra considers that to 

provide exemptions is contrary to the 

goal of pipeline safety, noting that the 

pipeline operator is the most qualified 

entity to determine if a pipeline exists 

within the area of interest, to locate and 

mark the facility, and to determine the 

safety precautions necessary to ensure 

the pipeline is not impacted. 

JULIE, Inc. expressed a concern that 

some states’ cultures provide for the 

successful existence of more than one 

excavation damage prevention system 

(one-call center) that does not have 

overlapping geographic areas. There 

appears to be no process in the ANPRM 

to recognize separate evaluation results 

in those states, particularly when 

possibly one or both of the systems may 

have unique but strong enforcement 

programs in place. 

Response 

As noted in the response to the 

General Comments above, some 

exemptions may be justifiable in some 

states, especially where substantiated by 

data. If having absolutely no exemptions 

were a ‘‘pass/fail’’ criterion for 

evaluating state excavation damage 

prevention law enforcement programs, 

PHMSA believes that nearly every state 

(if not all states) would be declared 

inadequate. 

PHMSA does not propose an absolute 

prohibition on exemptions from state 

one-call damage prevention 

requirements. States are ultimately 

responsible for establishing the 

excavation damage prevention laws that 

best suit their own circumstances. 

PHMSA policy strongly encourages 

states to limit exemptions, for both 

excavators and utility owners/operators, 

from excavation damage prevention 

laws to the extent practicable. To that 

end, one of the criteria for determining 

the adequacy of state excavation damage 

prevention law enforcement programs 

proposed in this NPRM is ‘‘limited and 

justified’’ exemptions for excavators 

from the requirements of state 

excavation damage prevention laws. 

In assessing state excavation damage 

prevention law enforcement programs, 

PHMSA will assess all programs if the 

state under evaluation has multiple 

enforcement programs. In that case, 

PHMSA may declare one or more of the 

enforcement programs inadequate, 

thereby allowing PHMSA to conduct 

Federal administrative enforcement 

actions in geographic areas covered by 

the inadequate program. 

Item 4: ‘‘Are the state’s requirements 

detailed and specific enough to allow 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19813 

6Further information on plain language 

principles can be found in Federal guidance here: 

http://www.whitehouse.gov/sites/default/files/omb/

memoranda/2011/m11-15.pdf. 

excavators to understand their 

responsibilities before and during 

excavating in the vicinity of a pipeline?’’ 

Paiute Pipeline and Southwest Gas 

Corporation recommended that PHMSA 

extend this objective to include 

excavating in the vicinity of any 

underground facility and supported 

PHMSA’s objective of states providing 

clarity to excavators to ensure that 

detailed and specific information is 

available so they understand their 

responsibilities before and during 

excavation within the vicinity of a 

pipeline. Similarly, AGL Resources 

commented that this item is an 

appropriate consideration when 

determining the adequacy of a state’s 

excavation damage prevention program, 

and noted that ensuring that excavators 

understand expectations and 

consequences is an important aspect of 

promoting compliance. 

NAPSR commented that addressing 

this criterion could be very subjective 

and that specific criteria would be 

needed for determining what is 

‘‘detailed and specific enough.’’ They 

noted that some states may have 

extensive regulations, while others may 

have successful excavation damage 

prevention programs with limited 

regulatory intervention. 

MidAmerican Energy Company 

commented that the detail and 

specificity of each state’s law need not 

match the level of detail of the proposed 

Federal requirements. They noted that 

there is value in allowing states to tailor 

their statutory and regulatory 

requirements to the specific 

circumstances presented in that state. 

They further noted that the level of 

detail of responsibilities is best 

determined by each situation, condition 

and scheme and operator requirements 

for excavations on or near its 

underground facilities, given that 

underground pipelines are constructed 

and operated in varied geographic 

locations such as remote wilderness, 

prairie, active agricultural lands, forests, 

residential, commercial, industrial, and 

subsea environments. 

AGA considers that state 

requirements for most professionals in 

the excavation industry adequately 

convey the responsibilities involved in 

proper excavation. However, it noted 

excavators are often non-professionals 

who do not understand safe digging 

practices or even the importance of 

notifying the one-call center. AGA noted 

that according to CGA’s 2008 DIRT 

Report, occupants and farmers have 

been the excavator in 8 to 10 percent of 

the damage reports collected over the 

three-year period between 2006 and 

2008. 

Response 

PHMSA encourages states to utilize 

plain language principles 6 when 

drafting their pipeline safety 

regulations. At the same time, though, 

PHMSA does not want to be overly 

subjective in establishing criteria for 

determining adequacy and PHMSA 

continues to believe that states can and 

should develop excavation damage 

prevention laws that best suit their 

particular needs. Therefore, PHMSA is 

not proposing to use the detail and 

specificity of state law as a criterion at 

this time. However, PHMSA believes 

that states should collect and manage 

data that is detailed enough to 

demonstrate that excavators clearly 

understand the requirements of state 

excavation damage prevention laws. 

Item 5: ‘‘Are excavators required to 

report all pipeline damage incidents to 

the affected pipeline operators?’’ 

Many commenters considered this 

item to be essential in evaluating the 

adequacy of state excavation damage 

prevention law enforcement programs. 

The TRA commented that mandatory 

reporting of damages to pipeline 

facilities should be a part of any 

effective excavation damage prevention 

program. AGA views this as one of the 

most important issues for evaluation 

and cited it as being included in the 

PIPES Act. AGA noted that the failure 

of excavators to notify the pipeline 

operator of damage promptly has 

resulted in some significant pipeline 

ruptures involving fatalities, injuries, 

and property loss. AGA cited that past 

incidents have been a painful reminder 

that just nicking the pipe coating or 

cutting a cathodic protection wire can 

affect the long-term integrity of the pipe 

and lead to a leak or rupture. Nicor 

commented that despite the 

requirement, excavators have waited up 

to several hours before reporting 

damages, thereby exacerbating 

circumstances. Nicor also cited 

instances where excavators considered 

damage to be minor (coating knick or 

broken tracer wire) and backfilled an 

excavation prior to reporting it, 

requiring the operator to then re-expose 

the area of reported damage to make 

repairs. AGL Resources also commented 

that in addition to excavators reporting 

damages to the operator, all utility 

operators should be required to report 

damages to provide a more complete 

picture of damage and prevention 

needs. To whom operators should report 

was not addressed. 

An additional comment received was 

that PHMSA should clarify how 

‘‘damage’’ would be applied to the 

operator as an excavator, or operator’s 

contract excavator and how this might 

be enforced. 

NUCA commented that while 

excavators are subject to extensive 

damage reporting requirements in most 

state laws, the lack of state requirements 

to report ‘‘near misses’’ obstructs efforts 

to provide accurate data trends. NUCA 

considers that when underground 

facility operators fail to locate and mark 

their lines accurately, that data should 

be captured regardless of whether the 

facility was damaged. Even if reporting 

of ‘‘near misses’’ is required by state 

law, NUCA believes these requirements 

are rarely enforced. 

Response 

Reporting pipeline damages to 

affected pipeline operators is an 

essential component of pipeline safety. 

To that end, PHMSA believes that states 

must require that excavators report to 

pipeline operators all incidents that 

actually result in physical damage to 

pipelines as a criterion for evaluating a 

state’s program. As noted above, states 

should also consider establishing 

criteria for operators in turn to report 

damage incidents to allow the state to 

determine whether an investigation and 

enforcement should be undertaken. 

Therefore, PHMSA is proposing, as part 

of the criteria for determining the 

adequacy of a state’s program, that each 

state has a reliable means for learning 

about excavation damages to 

underground pipelines (see proposed 

section 198.55). 

PHMSA agrees with the importance of 

damage reporting by all underground 

facility operators. However, PHMSA 

does not propose to use damage 

reporting by operators as a criterion for 

evaluating state enforcement programs. 

PHMSA has the authority to require 

pipeline operators to report damages, 

but does not have the authority to 

require other utility operators to report 

damages. PHMSA is concerned that this 

special requirement for pipeline 

operators would be confusing for utility 

operators and cumbersome for the 

states. 

With regard to the comment about 

PHMSA’s treatment of pipeline 

operators as excavators, PHMSA’s 

existing regulations at 49 CFR 192.614 

and 195.442 address these issues. 

PHMSA is not proposing to require 

reporting pipeline excavation damage 

near-misses at this time. While data on 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19814 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

near-misses would be valuable in 

guiding state excavation damage 

prevention program improvements, this 

proposed rule pertains specifically to 

excavators who actually damage 

PHMSA regulated pipelines. In 

addition, this requirement could impose 

a significant cost on excavators. 

However, there is nothing stopping a 

state from adopting more stringent 

reporting requirements such as 

including near-misses. PHMSA seeks 

comments on the potential cost impacts 

of requiring reporting of pipeline 

excavation damage near-misses. 

Item 6: ‘‘Does state law contain a 

provision requiring that 911 be called if 

a pipeline damage incident causes a 

release of hazardous products?’’ 

AGA and several gas pipeline 

operators commented that some states 

may adopt statutory language that does 

not exactly match the Federal 

legislation. For example, a state may 

adopt language that affords pipeline 

operators some latitude so that they do 

not need to dial 911 if they damage their 

own pipeline. Since operating personnel 

are already on the jobsite, AGA and the 

commenting companies agree that 

operators should not be required to dial 

911 if they cause damage to their own 

pipeline that results in a release that the 

operators can safely control without the 

aid of emergency response personnel 

prior to making the necessary repair. 

Paiute Pipeline and Southwest Gas 

Corporation also commented that this 

provision should apply only if the 

damage may endanger life or cause 

serious bodily harm or damage to 

property, and results in the escape of 

any flammable, toxic or corrosive gas, 

and that all releases of natural gas do 

not need to be reported by making a 911 

phone call. They noted that PHMSA 

should distinguish between natural gas 

and other gases or liquids instead of 

trying to include all of these under the 

umbrella of ‘‘hazardous products.’’ 

NAPSR commented that with regard 

to calling 911, the question should be 

whether the excavator by law—or 

appropriate regulation—is required to 

notify local emergency responders and/ 

or law enforcement if a release of 

product poses a danger to the public. 

NAPSR anticipates that where 911 is 

available the excavator would most 

likely use it to make that notice, but 

considers that it should not be necessary 

for state law to specify that method if 

the desired end is achieved. NAPSR 

noted that state laws may predate the 

advent of 911 emergency call systems, 

and therefore would not specify that 911 

must be called. NAPSR also noted that 

calling 911 is generally promoted 

through state one-call centers and 

operators’ public awareness programs, 

and the practice may best be achieved 

through best practices and not through 

Federal or state regulations. 

Response 

The PIPES Act requires excavators to 

promptly call the 911 emergency 

telephone number if damage to a 

pipeline results in the escape of any 

flammable, toxic, or corrosive gas or 

liquid that may endanger life or cause 

serious bodily harm or damage to 

property. PHMSA understands that 

excavators are often required to 

reimburse 911 centers for the cost of 

dispatching emergency response 

personnel to a damage site. Therefore, 

PHMSA proposes that states require 

excavators to call 911 in these instances, 

but is proposing to permit the excavator 

to exercise discretion as to whether to 

request that the 911 operator dispatch 

emergency response personnel to the 

damage site. However, the 911 operator 

will always have the discretion to 

dispatch emergency response personnel. 

Item 7: ‘‘Has the responsible state 

agency established a reliable 

mechanism to ensure that it receives 

reports of pipeline damage incidents on 

a timely basis?’’ 

Paiute Pipeline and Southwest Gas 

Corporation commented that states that 

do not have interstate pipeline 

inspection and enforcement authority 

should treat an interstate pipeline 

operator as an excavator, not a pipeline 

operator. They consider that authority 

for inspection and enforcement of 

interstate pipelines should remain with 

PHMSA and no reporting of pipeline 

damage to the state is needed. 

Southwest Gas Corporation 

commented that if PHMSA desires 

individual incident report information 

on non-Federally reported incidents 

from the states, PHMSA should 

recommend establishing a reporting 

time period with the state agencies. 

Southwest Gas Corporation noted that to 

eliminate any increased burden on the 

state agency, PHMSA should consider 

specific criteria levels for those stateonly reportable incidents of which they 

want notification. 

Paiute and Southwest Gas 

Corporation also commented that 

notification requirements are different 

than reporting requirements. They noted 

that state and Federal reporting 

requirements provide initial notification 

to the respective agency within a very 

short time (usually one to two hours) 

after discovery. The extent of product 

release, service interruptions, product 

loss, property damage, evacuations, 

injuries, fatalities, or environmental 

damage, which may not be known for 

days, are generally included on a 

written report form filed with the 

appropriate agency, within 30 days or 

less in accordance with state or Federal 

requirements. They noted that for 

interstate pipelines not subject to state 

jurisdiction, PHMSA has requirements 

for reporting incidents that meet certain 

criteria. The requirements include an 

initial notification deadline and a 

documented incident report deadline. 

NAPSR inquired whether PHMSA is 

going to require that all reports be sent 

to PHMSA, or that specific reports be 

made available upon request, and 

commented that if PHMSA wants 

reports of all damages, it should simply 

require the operators report directly to 

PHMSA instead of placing an additional 

burden on the states. 

Response 

For a state to have an effective 

excavation damage prevention 

enforcement program, the enforcement 

authority must have a reliable 

mechanism for learning about 

excavation damage incidents. The 

details of how this mechanism 

functions, however, may vary 

considerably from state-to-state. For 

example, some state law may require 

mandatory reporting of excavation 

damages, while other states use 

complaint-based systems of reporting 

damages. Because PHMSA must 

evaluate state enforcement programs, 

PHMSA’s goal is to assess how states 

learn of excavation damages and how 

this mechanism drives enforcement 

decisions, which has an effect on the 

adequacy of states’ enforcement 

programs. PHMSA will not be collecting 

state damage reports, but may review 

them during evaluation of the state’s 

program. 

Item 8: ‘‘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?’’ 

NAPSR commented that the listing of 

anticipated review items during an 

excavation damage incident 

investigation may be helpful during 


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Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19815 

investigation of an event reportable as a 

pipeline incident or accident. However, 

it is unrealistic to expect an 

investigation of this magnitude into 

each and every event where a pipeline 

is damaged. NAPSR considers that the 

resources required would exceed those 

of entire state pipeline safety programs, 

and noted that PHMSA is considering 

these regulations at a time when many 

states are suffering financial hardship 

and their pipeline safety programs are 

struggling to remain afloat. Other 

commenters repeated this consideration. 

NAPSR commented that the following 

listed items should be clarified and that, 

to the extent that any of them are 

incorporated into Federal regulations, 

PHMSA should clarify its intent and 

expectation for each item: 

Æ ‘‘Whether the excavator 

appropriately used the one-call system 

to request a facility locate’’—Does 

having a ticket number suffice? 

Æ ‘‘Whether the excavator 

appropriately used the one-call system 

to request a facility locate’’—Does one 

need to determine if the site was premarked? 

Æ ‘‘Whether the dig ticket was 

generated’’—Does having the ticket 

number suffice? [Or] Does transmission 

of the ticket to operators need to be 

confirmed? 

Æ ‘‘How quickly the pipeline operator 

responded’’—Is the question here 

whether the operator responded within 

the time frame allowed by the law or 

regulation in that state? And, would this 

information be relevant if the incident 

cause is that the facilities were marked 

and excavation practices were 

insufficient? 

Æ ‘‘Whether the pipeline operator 

followed all of its applicable written 

procedures’’—Would this require a field 

audit and review of the operator’s 

(employee or contract) locator on the 

site of the incident? 

Æ ‘‘Whether the excavator waited the 

appropriate time for the facilities to be 

located and marked’’—Would this 

require verifying that all utilities had 

marked the site prior to the excavator 

performing the work? [Or] Would 

comparing the start date on the ticket to 

the incident date suffice? 

Æ ‘‘Whether the pipeline operator’s 

markings were accurate’’—Would this 

require field verification of the marks? 

If yes, how much delay can be justified 

in an excavator’s downtime while the 

marks are being verified? Can the word 

of the operator and excavator be taken 

as fact? Can an emergency locate be 

performed and excavation activities 

resumed before arrival of a government 

inspector on site? 

Æ ‘‘Whether the digging was 

conducted in a responsible manner’’— 

Would this require a field investigation 

including interviews with the foreman, 

operator and laborers? Can the results of 

the investigation by the operator be 

considered as fact? If it is ascertained 

that best practices were not followed, 

would this constitute a ‘‘violation’’? 

What are the essential elements of an 

‘‘investigation’’? 

NAPSR also commented that all DOTreportable excavation damage incidents 

should be investigated. However, it 

noted that there are many thousands of 

DOT non-reportable incidents each year 

that involve superficial damage and no 

escaping gas. NAPSR considers that a 

one-size-fits-all investigation approach 

is not practical, and that the extent of 

investigation of non-reportable 

incidents should be on a state-by-state 

basis, left to the discretion of the 

responsible state agency. The state 

should be allowed to adopt a basis for 

investigation, such as establishing 

thresholds, or perform periodic 

sampling coupled with enforcement 

proceedings on the incidents sampled, 

so a deterrent effect is achieved. 

NAPSR further commented that it 

may be possible that the PHMSA Office 

of Pipeline Safety Failure Investigation 

Policy document will play a role in 

connection with this aspect of the 

proposed rulemaking. NAPSR, 

therefore, suggested that this policy be 

considered along with other factors 

before formalizing a notice of proposed 

rulemaking. 

AGA commented that the evaluation 

process should recognize those states 

that have adopted some basis for 

investigation. The basis could be event 

significance or it could investigate some 

subset of the damages, such as state 

reportable incidents. AGA noted that it 

is not feasible for a state agency to 

conduct a formal investigation for every 

occurrence of excavation damage to 

pipelines in a state. AGA also 

commented that most importantly, the 

state should have a mechanism that 

enables all stakeholders to express 

formal concerns and complaints with 

non-compliant parties, citing, for 

instance, that excavators should have a 

process to file complaints against 

utilities that fail to mark their facilities 

accurately or on time. Additionally, 

pipeline operators should have a 

process to file complaints or seek 

injunctions against excavators who 

either fail to notify the one-call center, 

fail to respect the markings or fail to 

wait the required time before beginning 

excavation activity. 

APGA commented that this 

consideration should apply only to 

reportable incidents as defined in 49 

CFR Part 191 because it would not be 

reasonable to expect operators and/or 

state agencies to investigate and report 

in this detail on all excavation damage 

events. APGA noted that some lesser 

level of reporting may be considered for 

events that do not meet the reportable 

incident criteria. Nicor suggested that 

states should have a process for 

determining which reported excavation 

damages will be investigated. APGA 

also noted that under the Distribution 

Integrity Management Programs (DIMP) 

rule, operators will annually report the 

number of excavation damages to 

PHMSA, and that these reports could 

also be made available to states. 

Southwest Gas Corporation 

commented that if PHMSA means only 

reportable incidents (as defined by each 

state) that result from excavation 

damage, then determining the 

effectiveness of the state excavation 

damage prevention program should 

include a review of all excavation 

damage, not just excavation damage to 

pipelines, and include analysis of any 

trends and areas for improvement. 

NUCA commented that states must 

ensure that those conducting damage 

investigations look at the entire 

excavation damage prevention process, 

from the excavator notifying the one-call 

center to the facility operator providing 

accurate and timely markings, to safe 

excavation and backfill practices by the 

excavator. NUCA believes that the 

ANPRM adequately addressed the 

factors needed to be investigated, but 

that several state authorities fail to 

fulfill their investigative responsibilities 

in all areas of excavation damage 

prevention, especially with regard to 

locating and marking of facilities. 

Response 

PHMSA’s primary interest with regard 

to pipeline damage investigations is to 

ensure that state enforcement is fair and 

balanced and is targeted to the at-fault 

party in an excavation damage incident. 

PHMSA recognizes that states have 

resource issues to contend with and 

need the ability to focus investigatory 

resources on significant incidents as 

opposed to minor incidents. PHMSA 

intends to address this consideration in 

determining the adequacy of 

enforcement programs by reviewing 

state enforcement records and the 

adequacy of the investigations that 

preceded enforcement actions. In 

addition, PHMSA intends to assess 

states’ incident investigation practices 

to ensure their adequacy in determining 

the at-fault party in an excavation 

damage incident involving a pipeline 

subject to PHMSA pipeline safety 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19816 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

regulations. PHMSA does not intend to 

use PHMSA’s Failure Investigation 

Policy as a model for assessing the 

adequacy of state damage incident 

investigation practices. 

Item 9: ‘‘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))?’’ 

With regard to the amount of the civil 

penalty, PUCO noted that the ANPRM 

does not indicate how large state 

maximum civil penalties would have to 

be in order to be considered ‘‘similar’’ 

to Federal maximums or the 

appropriateness of Federal maximum 

penalties against non-gas pipeline 

excavators. NAPSR commented that for 

pipeline operators some states’ fines are 

equal to the Federal maximums, but that 

for excavators, fines may vary from 

small amounts per violation and 

gradually increase, depending on the 

circumstances, with no maximum. 

NAPSR noted that in practice, some 

states have found that an administrative 

process with modest fines (i.e., large 

enough to have a financial impact on 

the offender) works well. The larger the 

fine, the harder it is to collect and the 

collection process tends to consume a 

lot of the state agency’s resources. 

NAPSR also commented that in state 

legislatures, the authorized amount of a 

civil penalty can be a serious issue. 

Legislatures may be reluctant to approve 

penalties so high that small companies 

could be put out of business, noting that 

although the assessed penalty does not 

have to be the maximum, the possibility 

remains a concern. NAPSR notes that 

the penalties incorporated in state laws 

may be the product of laborious and 

protracted negotiations—and the 

penalties provided for in 49 U.S.C. 

60122 are quite high by many state 

standards. NAPSR notes that there is no 

evidence that state penalties must be 

comparable to Federal penalties for state 

enforcement to be effective, and that if 

such a comparison must be a 

consideration it should be a minor one. 

MidAmerican Energy commented that 

the amount of the maximum civil 

penalty that may be assessed may not be 

the critical factor in evaluating a state’s 

enforcement program. Instead, the 

aggressiveness and consistency by 

which a state investigates and enforces 

the excavation damage prevention laws 

may be a more effective gauge. Michigan 

Consolidated Gas noted that 

consideration should be made regarding 

a state’s funding and resources to 

administer its enforcement program, i.e., 

does the state have the manpower to 

investigate, hold hearings, document 

findings, etc., for every violation found 

or complaint filed especially if this 

includes non-regulated or non-pipeline 

entities? 

The PST commented that if PHMSA 

is going to ascertain whether the 

amounts of civil penalties assessed 

reflect the seriousness of the incident, 

then PHMSA must develop a set of 

guidelines that sets out each type of 

offense and the range of penalties that 

PHMSA deems appropriate. PST noted 

that this will also help to provide clarity 

regarding the question in the ANPRM 

about whether a state program’s civil 

penalties ‘‘are the maximum penalties 

similar to the Federal maximums.’’ 

The several Texas pipeline 

associations commented that a 

substantial portion of state grant monies 

should be tied to enforcement and 

collection of substantial civil penalties 

for failure to comply with a state onecall law that is found to be adequate. 

They also suggested that penalties 

related to excavation damage prevention 

being collected by states should be 

dedicated to pipeline safety, and not 

just the general revenue fund. 

Spectra Energy Transmission 

commented that PHMSA’s criteria 

should consider a state’s historical 

enforcement action against excavators 

that fail to place one-call tickets prior to 

excavating or fail to adhere to the 

mandatory waiting period following 

one-call notification. Spectra also 

commented that states should take 

enforcement action against intrastate 

pipeline or distribution system 

operators that fail to respond to one-call 

tickets or fail to properly locate or mark 

their facilities. They noted that penalties 

should escalate for repeated violations 

and that the existence of repeat 

violations may signal a weakness of 

deterrents and need for PHMSA action. 

Response 

While state civil penalty levels must 

be high enough to deter violations, 

PHMSA recognizes that states will often 

be conducting enforcement against 

smaller entities. Therefore, penalty 

levels lower than the Federal levels may 

be sufficient to achieve deterrence. 

Accordingly, PHMSA does not propose 

to require states to assess civil penalties 

at a level equal to Federal civil 

penalties. PHMSA’s primary interest 

with regard to state civil penalties is 

that (1) civil penalty authority exists 

within the state, and (2) civil penalty 

authority is used by the state 

consistently enough to deter violation of 

state excavation damage prevention 

laws. PHMSA seeks comments on this 

issue. 

PHMSA does not intend to address 

impacts to pipeline safety grant funding 

levels for states with excavation damage 

law enforcement programs PHMSA 

deems adequate. 

Item 10: ‘‘Has the state designated a 

state agency with responsibility for 

administering the damage prevention 

laws?’’ 

Marathon Pipeline commented that a 

state agency should be responsible for 

receiving and investigating reports of 

pipeline damage and near miss 

incidents caused by excavation. Paiute 

Pipeline agrees that the agency 

responsible for administering the 

excavation damage prevention laws 

should be designated in states where 

excavation damage prevention laws 

exist. Echoing this comment, the Texas 

pipeline associations commented that 

the first criterion for a state should be 

a single state agency designated to 

oversee the state’s underground 

excavation damage prevention program. 

They noted that a state agency must not 

only be designated as the agency 

responsible for the program, but must 

also have the authority to enforce the 

safety standards to protect underground 

facility operators, excavators, and the 

public. 

Going further, AGA and AGL 

Resources commented that effective 

excavation damage prevention requires 

more than merely designating a state 

agency with responsibility for 

administering the excavation damage 

prevention laws. They noted that 

although many states have agencies that 

have been delegated authority for 

administering the excavation damage 

prevention laws, often the state agency 

has not been given either the personnel, 

financial resources, or the incentives 

needed to exercise its authority. The 

three Texas pipeline associations 

commented that the adequacy of 

funding should be documented and 

reported by the states through several 

basic data elements. Such elements 

could include items like ratio of 

reported damages to calls, numbers of 

damages reported per mile and number 

of enforcement actions completed. 

There may be better measures of 

enforcement effectiveness, but whatever 

is used must demonstrate that 

enforcement is occurring. 

AGL Resources also commented that 

a state should establish, designate and 

utilize an ‘‘advisory type’’ committee 

made up of the various stakeholders as 

the responsible state agency. 

Response 

PHMSA’s primary interest in this area 

is assessing whether a state has a 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19817 

designated excavation damage 

prevention law enforcement authority to 

act as the lead in law enforcement cases. 

That authority needs to establish a close 

working relationship with the state 

pipeline investigators and develop a 

familiarity with the state’s pipeline 

safety and damage prevention laws and 

requirements. Once that authority 

begins to take enforcement action 

consistently, PHMSA will be interested 

to learn whether the state enforcement 

authority has adequate resources to 

perform its mission. In addition, 

PHMSA’s periodic review of states’ 

damage prevention enforcement records 

performed under the state certification 

process will provide PHMSA with 

information on the adequacy of 

enforcement resources. 

Committees comprised of 

representatives of all excavation damage 

prevention stakeholders that advise 

enforcement agencies may help to 

ensure fair and balanced excavation 

damage prevention law enforcement. 

However, PHMSA does not believe that 

advisory committees should have a 

‘‘veto’’ on enforcement decisions made 

by responsible officials and PHMSA 

also believes that advisory committees 

are not the only effective means of 

ensuring fair and balanced enforcement. 

PHMSA, therefore, does not propose to 

use as a criterion whether states utilize 

advisory committees in assessing the 

adequacy of states’ enforcement 

programs. 

Item 11: ‘‘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?’’ 

NAPSR commented that in some 

jurisdictions this would be privileged 

information not subject to disclosure. It 

also noted that a decision on whether to 

take formal enforcement action is a 

decision on whether to prosecute; thus, 

the concept of ‘‘prosecutorial 

discretion’’ may apply. NAPSR also 

inquired about what kind of 

documentation would be expected. 

Paiute Pipeline and Southwest Gas 

Corporation commented that 

transparency and consistency are 

important to an effective enforcement 

program. They consider that states 

should be responsible for documenting 

and recording investigations, decisions, 

and enforcement actions taken or not 

taken to ensure consistency in decisions 

and enforcement actions with all 

excavators. They also commented that 

PHMSA should consider if instead of 

being informed of every investigation 

and enforcement decision of every state, 

it would be more effective for PHMSA 

to recommend specific criteria levels for 

being informed of investigations and 

enforcement decisions. 

Response 

PHMSA will be reviewing state 

enforcement records to help assess 

whether states that have enforcement 

authority are actually using their 

authority and how they are using their 

authority. PHMSA believes that states 

should be able to explain the reasons 

behind their decisions as to whether or 

not to take enforcement action, but is 

not necessarily seeking access to 

privileged and confidential information. 

Item 12: ‘‘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?’’ 

AGA, API and AOPL supported the 

focus on utilization of civil penalties to 

enforce excavation damage prevention 

laws. API and AOPL supported 

PHMSA’s proposed threshold criteria to 

determine whether a state has 

established and exercised authority to 

assess civil penalties for violation of 

one-call laws. They noted that most of 

the other criteria listed in the ANPRM 

derive from these criteria and 

demonstrate that laws are in place and 

being enforced. 

AGA and others, including several 

pipeline operators, commented that 

fines and penalties should be significant 

enough to affect behaviors, yet they 

should not be so high that they give 

excavators incentive to be deceitful or 

fearful of reporting damages due to the 

potential repercussions. They consider 

that fines and penalties should escalate 

for repeat and willful violators, 

particularly those who have a history of 

being counseled on the importance of 

adhering to all safe digging laws and 

practices. They also commented that the 

maximum fine or penalty for any 

Federal administrative enforcement 

actions taken within state jurisdiction 

should be no more than the maximum 

amount cited in the state law, even if 

that state’s enforcement has been 

deemed inadequate. They commented 

that maximum penalties in 49 U.S.C. 

60122(a) should not be used for 

excavation damage prevention law 

enforcement as they are excessive for 

excavation damage prevention programs 

and can have adverse unintended 

consequences. 

Nicor commented that the state’s onecall statute should set forth aggravating 

or mitigating factors in determining the 

civil penalty. They also commented that 

when considering a history of 

noncompliance, excavator violations 

should not aggravate the penalty 

calculation for locating and marking 

violations, and vice versa, and that 

penalty assessments should be 

transparent to all excavators. 

Paiute Pipeline and Southwest Gas 

Corporation commented that PHMSA’s 

evaluation of a state’s enforcement 

program should consider whether the 

state has the ability to exercise its 

authority to assess civil penalties and 

whether it is fair and consistent in doing 

so. They also noted that not all damage 

incidents warrant financial penalties, 

and PHMSA should not limit its review 

to only penalties of a financial nature. 

They acknowledged that civil penalties 

are part of an effective excavation 

damage prevention program; however, 

they commented that in some states 

excavation damage prevention training 

has been effectively mandated in lieu of 

civil penalties. 

Response 

PHMSA’s primary interests with 

regard to state civil penalties for 

violations of excavation damage 

prevention law are that: (1) Civil penalty 

authority exists within the state, and 2) 

the state uses civil penalty authority to 

deter violation of state excavation 

damage prevention laws. PHMSA 

proposes to assess these two factors 

through a review of state law/regulation 

and records of past enforcement actions. 

PHMSA does not intend to hold states 

to an overly-prescriptive construct of 

civil penalty authority or to an overlyprescriptive civil penalty fee schedule. 

Sanctions other than civil penalties may 

have the desired effect of deterring noncompliant behavior. State excavation 

damage prevention enforcement records 

should be made available to the public 

to the extent practicable. PHMSA seeks 

comment on these issues. 

Item 13: ‘‘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?’’ 

AGA agreed that statistics are useful 

to understand trends and areas 

deserving attention, that past 

enforcement actions are one barometer 

of the enforcement activity in the state, 

and that past reports of enforcement 

against excavators should be reviewed 

for the type of excavator that is being 

fined or penalized. AGA also 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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commented that other items should be 

considered to determine whether or not 

enforcement has been active and 

effective, but noted that many states 

only collect data on excavation damages 

involving natural gas pipelines. AGA 

commented that each state should be 

expected to establish some clear, 

minimum reporting guidelines for the 

state enforcement agency, but that 

PHMSA should not expect the various 

state reporting guidelines to be uniform. 

NAPSR commented that although 

annual statistics are important, PHMSA 

should not place much emphasis on 

comparing the states against each other 

on the basis of these parameters. It 

noted that there is bound to be 

significant variability between the states 

due to factors including, but not limited 

to, the volume of excavation activity in 

the state, the density of the underground 

infrastructure, the number of one-call 

centers, the resources available to the 

entity in charge of enforcement, and the 

political climate in the state with 

respect to the prevailing preference as to 

what the excavation damage prevention 

law should cover. 

Paiute Pipeline and Southwest Gas 

Corporation commented that having 

data available to the public is not the 

standard for which a state’s program 

should be judged. They consider that 

damage incident investigations, 

enforcement actions, and penalties 

proposed or collected should not be 

provided to the general public without 

providing a clear and concise 

description of the information, as most 

of the general public has limited 

knowledge of, or experience with, the 

information that would be provided. 

Nicor commented that statistics 

collected should include damages by all 

excavators and on all facilities, not just 

pipelines. Paiute and Southwest Gas 

Corporation noted that data from the 

CGA DIRT could be used for analyzing 

excavation damages; however, 

providing damage information to DIRT 

is not mandated in all states. 

NUCA commented that timely 

gathering of damage data is important, 

as is the type of information collected. 

However, NUCA considers that damages 

incurred by the excavator should be 

collected as well. This should include 

costs to the excavator in cases where a 

facility is hit because of a failure to 

locate and mark facilities accurately in 

a timely fashion, including any damage 

to the excavator’s equipment or 

property, and any downtime incurred 

by the excavator while the true location 

of underground facilities is determined. 

Washington Transportation Builders 

Association commented that its industry 

is concerned that contractors will be 

singled out for incidents that were 

caused by others, such as mismarked 

utilities and failure to address utilities 

during the design process, and that 

PHMSA should determine what are 

appropriate ‘‘annual stats on damage 

incidents’’ to report to the public. 

API and AOPL commented that the 

reporting requirements suggested as a 

basis for evaluation could have the 

effect of requiring duplicate (or even 

triplicate) reporting for pipeline 

operators and/or other regulated 

entities. They noted that given that 

recently proposed revisions to PHMSA’s 

own accident and incident reports 

(7000.1 and 7000.2) would collect, and 

CGA’s DIRT report already collects, 

significant information about excavation 

damage incidents, PHMSA should 

consider changing the reporting 

requirements by which a state program 

is judged to allow for the use of the CGA 

or PHMSA data. Similarly, the WUCA 

commented that state agencies and 

PHMSA should explore means to share 

reported information electronically 

rather than imposing additional 

reporting requirements. 

The Michigan Public Service 

Commission (PSC) commented that 

reportable information should include 

the nature of the incident, the cause of 

the incident, the extent of service 

interruptions, property damage, 

evacuations, injuries and fatalities, and 

that product loss would be factored into 

the total dollar amount of the incident. 

Response 

Variability among the states makes it 

difficult to seek standardized 

information pertaining to excavation 

damage incidents, investigations, 

enforcement actions, penalties 

proposed, and penalties collected. 

Variability also makes it difficult to 

compare state enforcement programs. 

PHMSA does, however, propose under 

criterion 3 that availability of this type 

of information to the general public be 

a factor in evaluating state enforcement 

programs because public understanding 

and involvement of state enforcement 

can help to drive more effective 

enforcement. 

Additional Comments Related to 

Section IV.A 

Commenters were also invited to 

comment on additions and alternatives 

to the items listed in the ANPRM, as 

noted above, that may be equally 

suitable for the purpose of evaluating 

the adequacy of state excavation damage 

prevention law enforcement programs. 

Clarification 

PST and several other commenters 

noted that state excavation damage 

prevention programs apply to many 

utilities besides pipelines, and that it is 

unclear from the ANPRM whether a 

state’s entire excavation damage 

prevention program, including other 

utilities such as waterlines, sewer, 

electric, etc., will be judged or whether 

PHMSA will only review how 

excavation damage prevention is 

working for pipelines. PST commented 

that it is also unclear whether PHMSA 

intends to expand its authority to 

include damage to utilities other than 

pipelines, and if not, what effect 

PHMSA’s selective enforcement of only 

the part of the program regarding 

pipelines will have on a state’s more 

comprehensive excavation damage 

prevention program. Will states be 

driven to create two separate excavation 

damage prevention programs? What 

would be the unintended consequences 

of not regulating utilities other than 

pipelines? Similarly, the TRA 

commented that the proposed rule 

should distinguish between enforcing 

one-call laws and pipeline facility 

excavation damage prevention. TRA 

noted that one-call laws in many states 

cover many different types of utilities, 

and that it appears that a state may meet 

the requirements stated in the PIPES Act 

by enforcing pipeline facility excavation 

damage prevention without exercising 

the same level of authority over other 

underground utilities, such as water, 

sewer, telecommunications and 

electricity. 

PST also commented that it concurs 

with the general criteria set out in the 

ANPRM for determining whether a 

state’s enforcement program is adequate, 

and the use of the nine elements from 

the PIPES Act as a foundation for 

excavation damage prevention law 

enforcement programs. However, it 

noted that PHMSA also needs to 

consider and clarify: 

1. Whether each criterion is of equal 

importance or if a relative weight 

should be assigned to each; 

2. Whether the failure of a state to 

meet a single criterion results in the 

state’s damage prevention program 

being inadequate; and, 

3. Whether the failure to meet certain 

‘‘core’’ criteria or attain a ‘‘passing’’ 

score (based on relative weights of each 

criterion) will trigger an ‘‘inadequacy’’ 

determination. 

Response 

PHMSA proposes to review the 

adequacy of states’ excavation damage 

prevention law enforcement programs. 


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However, PHMSA’s regulatory authority 

extends only to pipelines subject to 

PHMSA’s pipeline safety regulations. 

PHMSA does not have the authority to 

enforce Federal excavation damage 

prevention standards in cases of damage 

to underground utilities other than 

pipelines. Despite PHMSA’s limited 

regulatory authority, PHMSA believes 

that if states implement effective 

enforcement programs that are driven by 

the goal of preventing excavation 

damage to pipelines, other utilities and 

excavation damage prevention 

stakeholders will benefit. PHMSA does 

not intend for states to develop separate 

excavation damage prevention programs 

for pipelines and other utilities. 

PHMSA proposes in this notice to use 

seven criteria to evaluate state 

enforcement programs. PHMSA, 

however, will not take a one-size-fits-all 

approach. Because of the wide 

variability among state enforcement 

programs, PHMSA believes these 

reviews must take into account the 

experiences of each state and limit 

comparison between state programs. 

PHMSA’s primary goal in evaluating 

the adequacy of state excavation damage 

prevention law enforcement programs is 

to seek clear evidence that: 

• State laws/regulations are adequate 

to protect underground infrastructure 

from excavation damage; 

• The state has a designated authority 

responsible for enforcement of the 

excavation damage prevention law; 

• The enforcement authority has a 

reliable means of learning about 

excavation damage incidents and 

possible violations of state excavation 

damage prevention law; and, 

• Enforcement authority is exercised 

effectively, including the use of civil 

penalties, to ensure compliance with 

state excavation damage prevention law. 

There are multiple ways a state can 

meet the more subjective criteria. 

Reviews of state enforcement programs 

would entail detailed conversations 

with excavation damage prevention 

stakeholders at the state level and must 

allow for some flexibility to permit a 

thorough and accurate review of state 

enforcement programs. 

PHMSA strongly believes that 

excavation damage prevention law 

enforcement is a state responsibility. 

Overly prescriptive Federal criteria for 

the review of state enforcement 

programs would be counter to this 

principle. This rulemaking is intended 

to provide limited, backstop Federal 

administrative enforcement authority 

regarding excavation damage to 

pipelines in states PHMSA finds to have 

inadequate enforcement programs and 

to encourage those states to enhance 

their existing excavation damage 

prevention programs or to implement 

programs to include effective 

enforcement through the use of civil 

penalties. 

Criteria for Review of SDP Enforcement 

Programs 

AGC of Texas recommended that 

when evaluating the adequacy of a 

state’s excavation damage prevention 

program, PHMSA should include 

criteria for a mandatory positive 

response system, which requires 

operator and excavator participation, 

enforceable with penalties. 

The WUCA commented that state 

excavation damage prevention law 

enforcement processes should include 

an appeals process that includes an 

appeals board with members who have 

adequate knowledge of design and 

construction administration processes, 

allowing them to assign responsibility to 

the appropriate party. They commented 

that failure to assign responsibility to 

the appropriate parties, such as 

operators, one-call centers, locators and 

design engineers, creates uncontrollable 

risk for contractors. 

API and AOPL commented that 

PHMSA should establish clear 

guidelines and criteria for determining 

which state excavation damage 

prevention programs are effective and 

effectively enforced, and noted that 

these criteria should be based on 

transparent data, where available, but 

should not impose additional data 

collection on the states. AGA noted that 

the most important criteria are the ones 

involving timely reporting of pipeline 

damages, a universal requirement for all 

parties to notify the one-call center prior 

to excavation, establishment of a single 

agency responsible for oversight of 

excavation damage prevention laws, and 

an effective enforcement process. AGA 

also commented that the criteria 

regarding the evaluation of state 

programs, as listed in the ANPRM, 

appears thorough, but acknowledged 

that how the criteria are weighted and 

actually evaluated is open to several 

different approaches. 

Several commenters expressed 

support for the need and intent of the 

proposed rulemaking, the development 

of criteria by which to evaluate state 

excavation damage prevention 

programs, and Federal administrative 

enforcement, if needed, when state 

enforcement is deemed inadequate. 

EPPG commented that a ‘‘standard 

model’’ for enforcement of excavation 

safety is needed to ensure existing state 

programs are not audited against 

unsettled standards. However, EPPG 

commented that Federal administrative 

enforcement intervention should not 

occur prior to a state being audited and 

provided an opportunity to improve on 

any deficiencies. 

NAPSR expressed the view that most 

of the items listed in the ANPRM are 

subjective and that additional 

examination of the assessment factors 

may be required to further eliminate 

some of the subjectivity. Alternatively, 

they suggested there may be need to 

develop some non-mandatory guidance 

to provide added detail. 

PST commented that if PHMSA 

decides to create a situation where a 

state can be found to have a program 

that is ‘‘nominally adequate,’’ PHMSA 

needs to define clearly what this means 

and how a state can achieve an 

‘‘adequate’’ status. PST’s preference 

would be for PHMSA to clearly 

communicate possible areas where 

improvements could be made in a 

state’s program rather than to create a 

hard to define status of ‘‘nominally 

adequate.’’ They encouraged PHMSA to 

create criteria that are clear enough that 

a state’s program is either adequate or 

inadequate. 

Spectra Energy commented that 

PHMSA criteria should weigh whether 

state excavation damage prevention 

laws include requirements for 

excavators to notify the state and the 

pipeline operator if they damage a 

pipeline during excavation and whether 

enforcement procedures exist for 

instances of non-compliance. 

TRA commented that the threshold 

criterion for evaluating the adequacy of 

a state’s excavation damage prevention 

program should include the lack of 

exemptions to the state’s excavation 

damage prevention laws, such as 

exemptions for state agencies, 

municipalities, agricultural entities, 

railroads, and other groups of 

excavators. TRA cautioned, however, 

that it, and likely other state regulatory 

agencies, does not have authority to 

make changes to the state pipeline 

excavation damage prevention law. To 

minimize exemptions, much effort and 

time must be expended to reach 

consensus regarding the entities to be 

exempted and to determine the extent of 

an exemption. While TRA agrees with 

the threshold criteria noted in the 

ANPRM, TRA asserted that as part of 

the evaluation to determine the 

adequacy of a state’s enforcement of its 

pipeline excavation damage prevention 

law, the state’s record of progress in 

strengthening its law should be 

considered. Every effort should be made 

to allow a state to continue working 

with stakeholders to improve pipeline 

excavation damage prevention laws 

without Federal intervention. 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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AGA commented that PHMSA should 

build flexibility into how it applies the 

performance criteria for the 13 criteria 

listed in the ANPRM. AGA noted that 

several of the items listed do not lend 

themselves to a simple rating or score, 

or even a definitive ‘yes’ or ‘no’ 

evaluation. For example, a state may 

require all parties to call before they dig, 

but it may give certain exemptions 

when the type of excavation involves 

the use of hand tools, noting that CGA’s 

2008 DIRT report indicates that 22 states 

fall into this category. AGA wondered 

how this type of scenario would affect 

a state’s evaluation. 

Response 

PHMSA does not propose to include 

a criterion for a mandatory positive 

response system that requires operator 

and excavator participation. PHMSA 

believes this criterion is outside the 

scope of this rulemaking. 

Effective excavation damage 

prevention enforcement programs 

require adequate processes for 

identifying the at-fault party in damage 

incidents to enable action to be taken 

against the at-fault party in any 

enforcement case. PHMSA does not 

consider this proposed rule to unfairly 

target excavators for enforcement action, 

but instead to address an enforcement 

gap in pipeline safety excavation 

damage prevention. 

PHMSA does not propose to make a 

distinction between ‘‘nominally 

adequate’’ and ‘‘adequate’’ state 

enforcement programs. The proposed 

criteria for evaluating state enforcement 

programs are designed to establish the 

threshold for minimum adequacy of 

state enforcement programs. PHMSA 

intends to deem state enforcement 

programs either adequate or inadequate 

through use of the review criteria and 

processes outlined in this NPRM. 

PHMSA does not propose to use 

weighted criteria in the evaluation. 

B. Administrative Process 

Section IV.B of the ANPRM sought 

comment on the administrative 

procedures available to a state that 

elects to contest a notice of inadequacy, 

should it receive one. It noted that the 

procedures would likely involve a 

‘‘paper hearing’’ process where PHMSA 

would notify a state that it considers its 

excavation damage prevention law 

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, and would likely allow the 

state to show later that it has improved 

its excavation damage prevention law 

enforcement program to an adequate 

level and request that PHMSA 

discontinue Federal administrative 

enforcement in that state. 

The ANPRM asked for comments 

regarding whether the described process 

would strike the right balance between 

the Congressional directive to PHMSA 

to undertake Federal administrative 

enforcement, where necessary, while 

providing a state with a fair and 

efficient means of showing that the 

state’s enforcement program is adequate. 

Section IV.B suggested that PHMSA 

would likely evaluate state excavation 

damage prevention enforcement 

programs on an annual basis, 

considering factors such as those set 

forth in Section IV.A. It noted that this 

annual review would likely include a 

review of all of the enforcement actions 

taken by the state over the previous 

year. 

Section IV.B noted that if the state’s 

enforcement program is ultimately 

deemed inadequate in its most recent 

annual review, direct Federal 

administrative enforcement against an 

excavator who violated Federal 

requirements and damaged a pipeline in 

that state could proceed without further 

process. 

The ANPRM also asked if the process 

should enable PHMSA to evaluate a 

state enforcement decision concerning 

an individual incident during the course 

of the year and potentially conduct 

Federal administrative enforcement 

where a state deemed ‘‘nominally 

adequate’’ in its most recent annual 

review decided not to undertake 

enforcement for an incident that 

PHMSA believes may warrant 

enforcement action. 

Process for Determining the Adequacy 

of State Enforcement 

PUCO commented that the 

administrative due process for 

determining whether a state program is 

‘‘inadequate,’’ as stated in the ANPRM, 

is very general and appears to be an 

informal process. PUCO noted that it is 

unclear whether the determination that 

a state program is ‘‘inadequate’’ is to be 

made by the head of PHMSA, PHMSA 

regional managers, a board or panel at 

PHMSA, or some other entity altogether. 

The WUCA commented that PHMSA 

should provide information and 

guidance that will clearly outline what 

the state must do to create an acceptable 

damage enforcement program by 

PHMSA’s standards. 

The Greater Chicago Damage 

Prevention Council commented that it 

endorses the development and 

implementation of best practices to 

prevent damage to pipelines and other 

underground facilities, but that it 

opposes enactment of the proposed rule. 

Its opposition is based on the following 

regarding Section IV, Paragraph B— 

Administrative Process: The proposed 

rule: (a) Fails to use imperative language 

and speaks in generalities, such as, what 

‘‘the process would likely involve;’’ (b) 

is devoid of elements mandating 

PHMSA provide those states deemed 

‘‘inadequate’’ or ‘‘nominally adequate’’ 

with detailed evaluation results that 

support PHMSA’s determination; (c) 

fails to provide adequate due process in 

the appeal of PHMSA’s determination; 

in fact, there is no appeal process 

identified relative to PHMSA’s ‘‘final’’ 

determination, other than to try again 

next year; (d) offers the state no 

opportunity whatsoever to undertake 

corrective action or improvement prior 

to PHMSA undertaking enforcement 

actions; and (e) fails to ‘‘strike the right 

balance between the Congressional 

directive to PHMSA to undertake 

Federal administrative enforcement 

where necessary while providing a state 

with a fair and efficient means of 

showing that the state’s enforcement 

program is adequate.’’ The Council also 

noted that the proposed rule fails to 

meet ‘‘Element 7,’’ stipulated in the 

Rule as mandatory for a 

‘‘comprehensive damage prevention 

program.’’ The commenter noted that 

the proposed rule is limited to PHMSA 

regulated pipelines and excludes all 

other underground facilities. It 

considers that by undertaking 

enforcement actions relating only to 

pipelines, PHMSA creates a de facto 

dual enforcement system, which in 

itself is a key criterion in determining 

whether an enforcement program is 

adequate. Therefore, the proposed rule 

establishes an ‘‘inadequate enforcement 

program’’ and should not be 

implemented. 

Response 

This NPRM proposes a clearlydefined process for determining the 

adequacy of state enforcement 

programs. PHMSA is authorized by 

Congress through the PIPES Act of 2006 

to pursue this rulemaking. The ANPRM 

was designed to solicit input from 

interested stakeholders on how to 

construct the proposed rule. To the 

extent the ANPRM used the term 

‘‘likely’’ in discussing a given approach, 

it only means that PHMSA has not made 

any final decisions on anything at the 

ANPRM or NPRM stage. Once the final 


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rule is published, the word likely will 

not appear in the text of any final 

requirement. 

PHMSA agrees that specific reasoning 

should be provided for any declaration 

of state excavation damage law 

enforcement program inadequacy. In 

addition, PHMSA would evaluate states’ 

progress on a yearly basis to assess 

adequacy. PHMSA proposes to make 

public the results of the reviews of state 

excavation damage prevention law 

enforcement programs. As noted above, 

comparisons of states are not practical 

given the wide variety seen in state 

enforcement programs. 

Findings 

Missouri PSC commented that a 

state’s enforcement program should 

either be deemed adequate or not 

adequate; a process that would set 

‘‘levels’’ of adequacy would simply be 

more subjective. Similarly, API and 

AOPL noted that a state either has an 

adequate program or it doesn’t, and that 

the state should not be held in ‘‘limbo’’ 

and should not constantly be secondguessed. They agree that if a state 

program is deemed deficient then 

PHMSA should work with the state to 

make it better. 

The WUCA commented that if a 

written statement is provided to the 

state notifying it of an inadequate 

excavation damage prevention law 

enforcement program, specific reasoning 

must be provided for the ruling. 

Additionally, rather than a ‘‘likely’’ 

opportunity to provide a showing at a 

later time, if deemed inadequate, a clear 

policy should be developed. 

AGC commented that the 

administrative procedures should 

include public notice of PHMSA’s 

determination of inadequacy in the 

Federal Register with a detailed 

explanation of the circumstances 

justifying PHMSA’s determination. 

Paiute Pipeline and Southwest Gas 

Corporation commented that PHMSA 

should not pursue a comparison of one 

state to another, but should only 

evaluate individual states through 

review of their excavation damage 

prevention programs, including state 

laws and enforcement authority. 

Response 

PHMSA is proposing to have state 

excavation damage prevention law 

enforcement programs be deemed either 

adequate or inadequate; PHMSA is not 

proposing to establish levels of 

adequacy. PHMSA intends to continue 

its SDP grant program, one-call grant 

program, and various other initiatives 

designed to assist states with improving 

their excavation damage prevention 

programs. These initiatives were 

described in more detail in the ANPRM. 

Federal Administrative Enforcement 

Regarding the precept in the ANPRM, 

‘‘If the state’s enforcement program is 

ultimately deemed inadequate, direct 

Federal administrative enforcement 

against an excavator who violated the 

state’s damage prevention law and 

damaged a pipeline in that state could 

proceed,’’ AGA commented: 

• PHMSA should also consider what 

will trigger Federal administrative 

enforcement action. Is damage the only 

trigger or is there a potential for 

enforcement action due to repeated 

complaints from operators of reckless 

excavation activities? (e.g., no 

notification to 811; failure to handexpose pipeline; etc.) 

• The process should not allow 

PHMSA to evaluate a state enforcement 

decision that has already been made. 

• Only states determined to have an 

inadequate program should have the 

possibility of PHMSA intervention. 

Like AGA, APGA, AGC, others 

commented that PHMSA should not 

evaluate a state’s enforcement decision 

concerning an individual damage 

incident in a state where PHMSA has 

found the enforcement program to be 

adequate or nominally adequate. 

Instead, APGA suggested PHMSA 

should consider whether certain high 

profile events received adequate 

enforcement action by the state in the 

course of its periodic review of the 

state’s overall enforcement program. 

NAPSR strongly suggested that only 

the states with inadequate programs be 

subject to PHMSA examination of 

enforcement decisions made at the state 

level, and only after PHMSA determines 

the principal factor of the state’s 

inadequacy has been repeated failure to 

enforce the law against clear cases of 

egregious violations. Similarly, Nicor 

stated that if a state is deemed 

nominally adequate, the state’s 

enforcement decision concerning an 

individual event should be upheld, but 

PHMSA should provide guidance to that 

state so that it improves its program for 

the next review. EPPG noted that if 

PHMSA took action in a state that had 

passed the most recent assessment of its 

enforcement program, it would 

undermine the purpose of the 

assessment itself. 

EPPG commented that PHMSA 

should define how enforcement 

responsibility between PHMSA and the 

state would be implemented. EPPG 

noted that as important as it is to 

identify and intercede in states found to 

have inadequate one-call enforcement, it 

is also important to clarify how 

enforcement responsibility should be 

conducted elsewhere. Excavators should 

not be exposed to multiple, divergent 

and possibly conflicting enforcement 

authorities and standards, and the 

standards and procedures should clearly 

define which agency will have 

jurisdiction. 

NUCA commented to reemphasize the 

importance of balanced enforcement in 

that Federal administrative enforcement 

against an excavator who violated the 

state’s excavation damage prevention 

law should be coupled with Federal 

administrative enforcement against 

pipeline operators who fail to locate and 

mark their pipelines accurately in 

accordance with the law. 

API and AOPL commented that they 

question the efficacy of direct Federal 

administrative enforcement against an 

excavator who violates a state’s 

excavation damage prevention law and 

damages a pipeline. They noted that 

state one-call laws vary with respect to 

elements such as notification time, 

ticket life, tolerance zone, and white 

lining. Without a Federal minimum 

standard to support Federal 

administrative enforcement, they do not 

believe it is appropriate or practical for 

PHMSA to enforce state laws evenly or 

consistently. 

AGC noted that the goal of 

enforcement should be to fairly arrive at 

rational outcomes, such as education 

and penalties that correspond to the 

gravity of the violation, without 

imposing unnecessarily high transaction 

costs on any participant, including the 

enforcement authority. 

PST offered comments/questions 

regarding consequences to states that 

choose to be inadequate. PST noted that 

‘‘PHMSA should clearly define in the 

NPRM what the consequences are for a 

state that is found to have an 

‘‘inadequate’’ or ‘‘nominally adequate’’ 

excavation damage prevention program. 

Will excavation damage prevention 

grants/monies be the only thing affected 

or will other state funding and authority 

be penalized as well?’’ Additionally, 

PST noted ‘‘While we agree with 

PHMSA and Congress that states have a 

responsibility to ensure a system is in 

place to protect underground pipelines, 

what are the consequences if a state 

chooses to ignore that responsibility in 

hopes that PHMSA will take it on? Will 

the financial consequences or loss of 

authority be greater than the possible 

short-term financial benefits to a state 

faced with a budget crisis? Is PHMSA 

staffed and funded adequately to take on 

such a greater enforcement role?’’ 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19822 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

Response 

PHMSA intends to evaluate the 

existence and adequacy of state 

excavation damage prevention law 

enforcement programs. PHMSA is 

proposing that this will be done, in part, 

by reviewing state enforcement records 

to ascertain whether a state is effectively 

applying its enforcement authority, 

assuming such authority is provided for 

in state excavation damage prevention 

law. PHMSA proposes to evaluate 

states’ pipeline damage investigation 

practices to ensure they are adequate to 

determine the at-fault party for 

excavation damage incidents. As noted, 

excavators will be subject to Federal 

administrative enforcement only in 

states determined to have inadequate 

enforcement programs, and PHMSA is 

proposing to make decisions regarding 

Federal administrative enforcement in 

those states on a case-by-case basis. 

Balanced enforcement of excavation 

damage prevention laws is important. 

As appropriate, PHMSA is proposing to 

enforce either this rule (once it is final) 

against excavators or existing 

regulations applicable to pipeline 

operators and their contractors against 

the at-fault party. PHMSA has enforced 

existing excavation damage prevention 

regulations applicable to pipeline 

operators. PHMSA believes that 

enforcement of existing excavation 

damage prevention regulations 

applicable to pipeline operators, at both 

state and Federal levels, is a deterrent to 

non-compliant behavior and reduces 

excavation damage to pipelines. 

PHMSA does not have authority to 

enforce state laws and has included the 

proposed Federal requirements for 

excavators in this proposed rulemaking. 

PHMSA proposes to consider state 

enforcement program adequacy to be a 

factor in determining state pipeline 

safety grant funding levels (after a 

lengthy grace period). PHMSA believes 

this approach will provide a financial 

disincentive for states to disregard their 

enforcement responsibility. PHMSA is 

seeking comment on this conclusion. 

Appeals 

Several commenters, including API, 

AOPL, PUCO, and Michigan 

Consolidated Gas, commented that 

states should be provided opportunities 

to respond to and appeal PHMSA’s 

decisions on the adequacy of a state 

enforcement program. PUCO noted that 

procedures for determining the 

adequacy of a state’s program and the 

process for appeals for reconsideration 

should be more fully described, and 

include a requirement for PHMSA to 

review and respond to any petition for 

reconsideration within a certain time 

frame. API, AOPL, Nicor, and 

Panhandle Energy support the 

development of administrative 

procedures that would be available for 

states that elect to contest a notice of 

inadequacy. Nicor noted that this would 

afford the state a fair and efficient 

means of showing that the enforcement 

program is adequate. 

PUCO noted that a definition of 

‘‘nominally adequate,’’ a description of 

how states may be qualified as 

‘‘nominally adequate,’’ and a listing of 

the implications of this designation for 

state programs should be provided. 

MidAmerican Energy noted that the 

‘‘paper hearing’’ process described in 

the ANPRM would be appropriate. 

Response 

The criteria PHMSA will use to 

determine the adequacy of state 

enforcement programs and the 

administrative process for a state to 

appeal a determination of inadequacy 

are proposed in this NPRM. 

Civil Penalties 

AGC commented that PHMSA must 

consider education as an alternative or 

supplement to civil or other penalties, 

and in cases where financial penalties 

are assessed revenues generated must be 

reserved to finance excavation damage 

prevention education and technologies 

used in support of excavation damage 

prevention activities. 

Response 

Enforcement tools other than civil 

penalties, such as compliance orders, 

can be useful tools for enforcement of 

excavation damage prevention laws. 

However, PHMSA believes that civil 

penalty authority and effective use of 

that authority are essential components 

of effective excavation damage 

prevention law enforcement programs. 

PHMSA does not propose to require the 

use of sanctions other than those 

provided in existing pipeline safety 

statutes or regulations. 

Costs 

API and AOPL noted that PHMSA 

may consider using its grant resources, 

such as the SDP grants, to encourage 

state compliance with the elements of 

this rulemaking. That may require 

changes to the existing grant criteria that 

could be included in a proposed and 

final rule. 

Response 

PHMSA agrees that the SDP grant 

program can be targeted to improve state 

excavation damage prevention law 

enforcement programs, and PHMSA 

does have discretion in weighting the 

evaluation criteria applicable to SDP 

grant applications. However, PHMSA 

has not proposed any changes to the 

SDP grant criteria in this proposed rule. 

Process 

AGC commented that subsequent to 

public hearings, a commission should 

be convened to establish a 

predetermined timeline in which states 

must meet certain benchmarks 

demonstrating steps to address 

inadequacies and that any penalties or 

enforcement be coupled with direct 

enforcement against pipeline operators 

who fail to accurately locate and mark 

facilities. 

The Texas pipeline associations 

commented that the first step in the 

process used to determine the adequacy 

of a state’s program should be an 

evaluation of each state’s program 

against a common set of known factors. 

They commented that once PHMSA 

completes its evaluation, the state 

should be permitted to comment on the 

evaluation before it is finalized. They 

also consider that excavation damage 

prevention stakeholders should be given 

an opportunity to comment on the 

evaluation. When a final determination 

has been made and a state’s program is 

found inadequate in some respect, the 

state should be provided an opportunity 

to make improvements to its program. 

API and AOPL commented that 

PHMSA should use a multi-step process 

when determining whether a state’s 

program is inadequate, perhaps 

including preliminary determinations, 

interim determinations, and eventually 

final determinations. They also noted 

that at each step of the process, PHMSA 

should clearly describe, in functional 

rather than prescriptive terms, changes 

required for a state’s program to be 

deemed adequate. They commented that 

the process for this provision should be 

the same as is currently used in the state 

certification program and that 

assessment of a state’s program should 

be at the program level, not at an 

individual case level. API and AOPL 

also consider that enough time should 

be granted at each step of the process to 

allow states time to modify their 

programs as needed at the legislative 

and/or regulatory level. This process 

should, however, be completed 

expeditiously to ensure that compliance 

is timely and the public interest is 

preserved. 

Similarly, PST commented that the 

administrative process for states to 

contest notices of inadequacy described 

in the ANPRM seems fair to the states. 

Among the concerns PST expressed, 

however, are the time periods that 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19823 

would be established for: (1) PHMSA to 

issue a notice of inadequacy after its 

annual review; (2) a state to contest this 

notice; (3) PHMSA to make a final 

written determination; (4) a state to 

petition for reconsideration; and (5) 

PHMSA to rule on the petition for 

reconsideration. PHMSA needs to strike 

the right balance between waiting too 

long to intervene and not waiting long 

enough. 

The Texas pipeline associations 

echoed this comment in that the 

opportunity for a state to make 

improvements must take into account 

an appropriate time period for the state 

agency to make the required 

improvements in a manner complying 

with state law. These time periods will 

need to be tailored to each situation 

because some may require legislative 

action while others may only require an 

internal agency policy change. They 

noted that while Federal administrative 

enforcement may be necessary in some 

states, reasonable efforts should be 

exerted and sufficient time provided to 

promote adequate state-based 

enforcement of excavation damage 

programs. They suggested that there 

may be situations where PHMSA could 

facilitate discussions between state 

stakeholders to establish a plan to 

address certain deficiencies. 

Missouri PSC commented that the 

process outlined in the ANPRM appears 

to strike an appropriate balance between 

the Congressional directive to PHMSA 

to undertake Federal administrative 

enforcement while providing a state 

with a fair and efficient means of 

showing that its enforcement program is 

adequate. However, Missouri PSC noted 

further comments may well be 

necessary depending on the provisions 

of the actual proposed rule. 

NAPSR questioned how PHMSA 

would anticipate seeking information 

from other agencies in those states 

where the enforcement agency is not the 

state pipeline safety agency? 

Response 

PHMSA does not propose to convene 

a commission to establish a 

predetermined timeline in which states 

must meet benchmarks demonstrating 

steps to address inadequacies in their 

damage prevention enforcement 

programs. PHMSA believes the state 

enforcement program evaluation criteria 

proposed in this NPRM, in effect, 

establish benchmarks. 

PHMSA has proposed the process for 

evaluation of state enforcement 

programs and the process by which 

states may contest notices of 

inadequacy. PHMSA does not propose 

to consider excavation damage 

prevention stakeholder comments on 

state enforcement program evaluations. 

PHMSA proposes to evaluate the 

states’ enforcement programs whether 

they are administered by state pipeline 

agencies or other state authorities. 

PHMSA proposes to communicate the 

implications of this proposed rule with 

state enforcement authorities outside of 

state pipeline safety agencies, including 

attorneys general, state police agencies, 

and other authorities, as required. 

PHMSA would plan to make its 

determination as to the adequacy of a 

state program as soon as practicable 

after completion of the state annual 

review. A state would then have 30 days 

from receipt of the notice of inadequacy 

to respond. 

Review Cycle 

API and AOPL noted that PHMSA 

should require annual reviews of state 

excavation damage prevention 

programs, but such reviews should be 

initiated after initial adequacy 

determinations have been completed. 

They noted that annual reviews should 

focus on continuing effectiveness 

indicators (i.e., whether or not 

excavation damage incidents are 

declining) and not simply on whether 

every incident has merely been 

documented and investigated. 

NAPSR commented that the 

frequency of review of a state excavation 

damage prevention program should be 

tailored to the level of adequacy initially 

determined for the program, using 

criteria included in the final rule 

resulting from this ANPRM. Thus, states 

with the lowest level of initial adequacy 

could be reviewed annually, while 

states with higher levels could be 

reviewed less often. NAPSR also noted 

that the ANPRM speaks about an annual 

review that will likely include a review 

of all of the enforcement actions taken 

by the state over the previous year, and 

questioned whether this would be the 

state liaison asking a few additional 

questions during the annual evaluation 

or something more substantial with 

extensive documentation. 

Similarly, Paiute Pipeline and 

Southwest Gas Corporation suggested 

that if a state is found nominally 

adequate in its most recent annual 

review, PHMSA should recommend 

placing the state on a staggered review 

period, such as two or more years. They 

commented, however, that if a state is 

found to be inadequate, PHMSA should 

recommend continuing with an annual 

review to assist the state in enhancing 

its excavation damage prevention 

program. 

Michigan Consolidated Gas 

commented that considering the state 

has the funding and resources to 

administer its enforcement program, a 

periodic review is acceptable, but 

suggested that yearly is not necessary. 

MidAmerican Energy commented that 

an annual review of a state’s excavation 

damage prevention law enforcement 

program would be appropriate with the 

provision that a state should be allowed 

to petition PHMSA to show that its 

previously inadequate enforcement 

program has been upgraded so that 

Federal administrative enforcement is 

no longer required. 

Response 

PHMSA agrees that annual reviews of 

state excavation damage prevention law 

enforcement programs should include 

reviews of program effectiveness 

indicators and is proposing this in the 

NPRM. However, PHMSA believes it 

appropriate to include program 

adequacy as part of its annual review 

process, but does not propose to include 

additional evaluation of continuing 

effectiveness indicators. 

Standards 

API and AOPL commented that 

PHMSA should consider the 

establishment of minimum standards for 

critical elements of state one-call laws, 

such as, but not limited to, notification 

time, tolerance zones and white-lining 

(or otherwise denoting the area of 

intended proposed excavation). 

EPPG and Panhandle Energy also 

noted that prior to an audit by Federal 

authorities of any state program, a clear 

and understood ‘‘standard’’ should be 

prepared that a state can be audited 

against and met. EPPG supports the 

ANPRM’s annual audit proposal of state 

programs but is concerned that this 

effort could draw unnecessary resources 

away from PHMSA’s other safety 

programs. Therefore, EPPG advocated a 

‘‘standard,’’ which is understood by all 

parties that could be more quickly used 

as an audit tool during the annual audit. 

Response 

The criteria for review of state 

enforcement programs are proposed in 

this NPRM and PHMSA welcomes 

comment on these criteria. However, 

PHMSA is not proposing a model state 

one-call law or other audit standard in 

this rulemaking. 

State Resources 

APGA expressed concern that the 

review process may become very time 

consuming for both PHMSA and the 

states, which would have the 

unintended effect of diverting limited 

resources away from the excavation 

damage prevention effort. APGA 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19824 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

considers that there should be further 

discussion about exactly what this 

review would entail before a rule is 

proposed. 

Michigan Consolidated Gas 

commented that PHMSA should 

consider when evaluating a state’s 

enforcement program that this proposed 

process can be influenced by the ability 

of the state to carry out enforcement 

(i.e., state resources, funding, volume of 

complaints, etc.). Similarly, the 

Michigan PSC commented that PHMSA 

must be flexible depending upon the 

resources given to the state to provide 

for an adequate program. 

Response 

The state enforcement program review 

process should not be too time 

consuming or divert resources away 

from excavation damage prevention 

responsibilities. The review criteria and 

process in this proposed rule have been 

written to be as simple as possible to 

address this concern. However, PHMSA 

is seeking comment on this conclusion. 

Resources can affect the ability of a 

state to meet its excavation damage 

prevention law enforcement 

responsibilities. However, PHMSA does 

not propose to assess state enforcement 

resources, but instead to assess state 

enforcement records. If state resources 

are insufficient to enforce the state 

excavation damage prevention law 

adequately, state enforcement records 

are likely to reflect the insufficiency. 

C. Federal Requirements for Excavators 

Section IV.C of the ANPRM sought 

comment on the establishment of the 

Federal requirements for excavators that 

PHMSA would be enforcing in a state 

that PHMSA has found to have an 

inadequate enforcement program. It 

noted that at a minimum the standards 

will reflect the words cited in the PIPES 

Act regarding requirements for 

excavators. 

Section IV.C gave examples to which 

some commenters addressed 

specifically, including: 

• Should the Federal requirements for 

excavators be limited to the minimum 

requirements reflected in the PIPES Act 

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 ANPRM also suggested that the 

CGA Best Practices and API 

Recommended Practice 1166, 

Excavation Monitoring and Observation 

(November 2005), could be used to 

inform the development of such 

standards. 

Federal Requirements 

Several commenters, including AGA, 

API, AOPL, Michigan Consolidated Gas, 

and others, support establishing a 

Federal requirement for excavators. 

They noted that the minimum 

requirements in the PIPES Act and the 

U.S. Code are sufficient for establishing 

Federal requirements, and that keeping 

it simple is the most effective approach. 

API and AOPL commented that the 

proposed requirements should lead to 

greater pipeline safety by making 

excavators more aware of their one-call 

responsibilities and the consequences of 

failing to comply with state laws and 

regulations. AGA commented, however, 

that the ANPRM was unclear whether 

PHMSA intends to try and impose these 

standards on excavators that might 

include homeowners, land owners, 

private contractors, and other utilities. 

AGC commented that if PHMSA 

deems a state’s excavation damage 

prevention law enforcement program 

inadequate, the basic premises in the 

ANPRM are reasonable. AGC suggested 

that PHMSA should refer to the CGA 

Best Practices as a template for guidance 

standards in the absence of appropriate 

state standards until a determination of 

the adequacy of the state excavation 

damage prevention program is made. 

Similarly, EPPG fully supports the 

development of a Federal requirement 

that PHMSA could use to determine if 

a state’s excavation safety program is 

adequate but that PHMSA should not be 

the sole, or even primary, developer of 

this standard. A national consensus 

standard should be developed by all the 

various stakeholders, including Federal 

and state agency regulators, industry, 

the excavation community, members of 

the public, one-call organizations, and 

other excavation-affected parties. 

GulfSafe commented that setting 

standards for excavators would bring 

some consistency to the excavation 

community, especially for those 

excavators who consistently work in 

multiple states. GulfSafe also considers 

it important that any prescriptive rule 

use the CGA Best Practices as a 

foundation for the rule to gain 

acceptance in the excavation 

community. The organization noted that 

the CGA Best Practices have long been 

a consensus based approach that has 

understood that one size doesn’t fit all 

and has made allowances for geography 

and soil types as well as local practices. 

Best Practices are intended to be 

voluntary, not prescriptive, and there is 

evidence that they are working. 

The APGA opposes establishment of 

Federal requirements for excavators and 

considers that PHMSA should defer to 

existing state laws where they prescribe 

excavation damage prevention 

requirements. APGA considers that 

creating a Federal requirement that 

would overrule state requirements only 

if the state is found not to be enforcing 

its excavation damage prevention law 

would create confusion in both the 

excavation and utility communities as 

to which requirements apply. APGA 

noted that only where a state has no 

standards for such activities should 

PHMSA apply Federal requirements. On 

the other hand, API and AOPL consider 

that while conditions vary from state-tostate and that ‘‘one size does not fit all,’’ 

PHMSA should establish minimum 

requirements through a notice and 

comment rulemaking process. 

MidAmerican Energy Company 

commented that the minimum 

requirements presented in the ANPRM 

are an appropriate starting point, and 

that if experience reveals that additional 

or revised requirements are necessary, 

then revisions can be made based on the 

documented record. However, they 

noted that any additional or revised 

standards should consider that state 

excavation damage prevention laws 

pertain to more than just pipelines— 

they pertain to all types of underground 

facilities. It does not appear to be 

practical or prudent to approach this set 

of issues soley from a pipeline-only 

perspective, or to promote a ‘‘one size 

fits all’’ approach to underground 

facilities excavation damage prevention. 

Missouri PSC, Paiute Pipeline, and 

Southwest Gas Corporation commented 

that Federal requirements limited to the 

minimum requirements reflected in the 

referenced Federal statute should be 

sufficient. However, Missouri PSC noted 

that Federal requirements should also 

refer to any state statutory provisions 

that are either more stringent or 

different in practice (such as damages 

being reported to the one-call center 

rather than the pipeline operator 

directly). EPPG and Panhandle Energy 

support the development of a template 

that PHMSA could use to determine if 

a state’s excavation safety program is 

adequate. Panhandle considers that a 

national consensus standard or 

recommended practice should be 

developed by all the involved 

stakeholders, including Federal and 

state agency regulators, industry, the 

excavation community, members of the 

public, one-call organizations, and other 

excavation-affected parties. EPPG and 

Panhandle consider that a national 

consensus standard should address the 

issues mentioned in the ANPRM in 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19825 

Section IV.C, at a minimum, but should 

also address many other issues 

including, among others: 

• Expectations of individual state’s 

programs; expectations of excavators, 

regardless of legal or contractual 

affiliation. 

• Types of excavators covered by the 

standard (all excavators regardless of 

affiliation). 

• Individual state’s abilities to contest 

an annual Federal audit’s findings. 

• Physical excavation guidelines 

(locating, marking, communications, 

etc.). 

• The role of one-call programs. 

• Excavation damage reporting 

requirements. 

• Description of excavator’s 

responsibilities prior to and following 

any excavation, including any spill or 

damaging incident to the pipeline 

operator. 

• Requirements to contact 911 if any 

release of product or natural gas occurs. 

• Establishment of a mechanism to 

ensure the state receives reports of 

pipeline damage incidents in a timely 

manner. 

• Use of ‘‘emergency’’ excavation 

processes. 

• Excavation investigation 

requirements if pipeline damage occurs. 

• Explicit state authority. 

• Enforcement documentation 

requirements. 

• Reference to other useful guidance 

documents, such as the Common 

Ground Alliance’s work. 

• Due process criteria for excavators 

if liability is found. 

EPPG noted that some of these issues 

may not be suitable for a national 

consensus standard, and enforcement 

provisions are left out altogether since 

they are not suitable for a national 

consensus standard, but those not 

included in a standard could be 

incorporated within a future PHMSA 

‘‘state guide’’ for excavation safety. 

Michigan PSC commented that more 

detailed and extensive requirements are 

not necessary and may be in direct 

conflict with various states’ laws. It also 

asked that ‘‘excavator’’ be defined. For 

example, will homeowners be subject to 

the Federal requirements? 

NAPSR commented that PHMSA 

should not undermine state 

requirements with a second layer of 

excavator standards, but should defer to 

the individual states in such matters. 

They noted that the Federal law appears 

to define the expectations for excavators 

reasonably and provides a basis for 

enforcement. If PHMSA adopts 

regulations further defining what 

standards it believes an excavator 

should be held to, it risks creating two 

sets of standards, state and Federal, 

which excavators must follow. Due to 

the diversity of state requirements, the 

Federal requirements would 

undoubtedly contain inconsistencies 

and conflicts with the standards of at 

least some states. 

Nicor commented that one aspect of 

the minimum standards that is 

inadequate involves the locating and 

marking of facilities for which 

ownership is unclear. During this period 

prior to completion, such facilities may 

be left unmarked after a call to the onecall system. As an example, Nicor noted 

that in a new subdivision, it is often 

unclear who has ownership of and 

responsibility for locating and marking 

sewer and water lines prior to 

completion, at which point the property 

owner or municipality takes ownership. 

NUCA commented that the proposed 

Federal requirements effectively cover 

the primary responsibilities of the 

excavator, and are consistent with past 

DOT excavation damage prevention 

messages, such as the ‘‘Dig Safely’’ 

initiative of the 1990s. However, NUCA 

noted that utilization of ‘‘location 

information’’ is too vague for inclusion 

in a new Federal requirement. General 

information of underground pipeline 

facilities should never substitute for 

meeting all of the operator’s locating 

and marking responsibilities. 

Ohio PUC commented that 

requirements for pipeline operators and 

excavators should parallel, and PHMSA 

should consider providing guidance on 

how it intends to evaluate liability and 

enforcement if an excavator damages a 

pipeline system due to a pipeline 

owner/operator failing to mark 

underground lines or marking them 

incorrectly or inaccurately. Ohio PUC 

also commented that any Federal 

requirements should avoid specific 

requirements for marking standards that 

may conflict with reasonable and 

appropriate marking standards 

developed by individual states. 

The PST commented that there are a 

number of issues that need to be 

addressed if PHMSA imposes Federal 

requirements on excavators when 

PHMSA deems a state to have an 

inadequate enforcement program. For 

example: (1) Will these standards be 

permanent or will excavators again be 

held to state standards once the state 

program is deemed adequate? (2) What 

happens if the state enforcement 

program is deemed inadequate but some 

of the state’s standards or requirements 

are more stringent than the Federal 

government’s? Will PHMSA impose its 

lesser standards? (3) If the standards 

revert to those of the state once the 

enforcement program is deemed 

adequate, it is conceivable that 

excavators would only be required to 

meet the Federal requirements for a 

short period of time (from one annual 

review to another). Should this happen, 

excavators are likely to become 

confused about their compliance 

responsibilities. 

Southern California Gas and 

California Gas and Electric prefer that 

the standards for excavators for 

reporting damage should define 

‘‘damage’’ in more detail, similarly to 

California Government Code 4216.4.(c). 

They noted that all damage, even 

coating or cathodic protection wire 

damage, can affect the integrity of the 

pipeline over time. 

The three Texas pipeline associations 

commented that it is probably best if 

PHMSA adopts some set of Federal 

requirements for excavation damage 

prevention to be enforced in situations 

where a state program is determined to 

be inadequate. They noted that if the 

scope of a state agency’s excavation 

damage prevention standards was not 

the source of the finding of inadequacy, 

it would be least disruptive to all 

aspects of industry for PHMSA to 

simply enforce the existing state 

standards. They further noted that this 

approach may cause some legal and 

practical issues for PHMSA to provide 

consistent enforcement. It could 

represent a significant challenge for 

PHMSA to educate its staff on the large 

variety of state standards that they 

would need to enforce. 

USIC Locating Services’ comments 

indicate that it is in favor of establishing 

standards for excavators with regard to: 

the use of a mandatory 72-hour notice 

requirement; limiting the scope of a 

ticket to 1,320 feet; use of a 24′′ 

tolerance zone on either side of the 

buried facility; requiring white-marking 

(as opposed to just suggesting whitemarking); emergency locate requests 

made by excavators; and strict penalties 

levied against excavators abusing 

emergency locate provisions. 

The Wisconsin Transportation 

Builders Association (WTBA) 

commented that industry is concerned 

about the emphasis being placed solely 

on the excavator. They noted that while 

some requirements may be appropriate 

and helpful, they will nearly always 

create unintended consequences such as 

unnecessary cost and uncontrollable 

risk. According to the WTBA, there is 

rarely discussion regarding who is 

responsible for costs associated with 

unexpected delays to contractors. These 

costs are substantial and continue to 

affect the cost of public projects 

adversely. 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19826 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

Response 

PHMSA proposes to apply Federal 

requirements to all excavators, with the 

exception of homeowners excavating 

with hand tools on their own property, 

in states PHMSA deems to have 

inadequate excavation damage 

prevention law enforcement programs. 

The term ‘‘excavator’’ is defined in this 

proposed rule. PHMSA cannot enforce 

state laws in the absence of Federal 

requirements because, to the extent state 

requirements go above and beyond the 

minimum Federal laws, PHMSA has no 

authority to enforce such requirements. 

Development of Federal requirements is, 

therefore, a prerequisite to Federal 

administrative enforcement. The 

standards proposed in this NPRM are 

designed to establish minimum 

requirements for excavators to avoid 

excavation damage to pipelines. 

PHMSA does not propose to develop 

the Federal requirements through a 

consensus process, but rather through 

this rulemaking process. PHMSA used 

the PIPES Act to inform the 

development of the proposed Federal 

requirements. 

This proposed rule does not refer to 

any state standards; PHMSA believes to 

do so could create an overlyprescriptive set of standards. Different 

states have different geographic and 

demographic conditions and an 

effective damage prevention program for 

one state may not necessarily work for 

another. However, PHMSA considers 

the proposed Federal regulations to be 

the minimal standard that is basic to 

any effective excavation damage 

prevention law enforcement program. 

Because state and Federal requirements 

will never be enforced simultaneously, 

the existence of a Federal requirement 

should not present any conflicts with 

existing state requirements for 

excavators. However, PHMSA is seeking 

comment on this issue. PHMSA does 

recognize that excavators should be 

informed of the Federal requirements in 

states where those standards will apply. 

To that end, PHMSA intends to 

continue to work with excavator trade 

associations, state agencies and one-call 

centers, the Common Ground Alliance, 

and other key excavation damage 

prevention stakeholders to 

communicate the requirements of the 

final rule and the adequacy status of 

each state as broadly as possible. 

As we have stated previously, 

PHMSA’s statutory enforcement 

authority pertains only to excavation 

damage prevention as it relates to 

pipelines. Because PHMSA has no 

jurisdiction over sewer and water 

facility operators, this proposed rule 

does not address those operators’ 

responsibilities. 

Requirements for pipeline operators 

regarding locating and marking their 

facilities are clearly defined in existing 

pipeline safety regulations (49 CFR Parts 

190–199). PHMSA will continue to 

enforce existing Federal excavation 

damage prevention regulations 

applicable to pipeline operators if 

investigations reveal that pipeline 

operators fail to comply with those 

regulations. PHMSA does not propose to 

amend the standards currently 

applicable to pipeline operators in this 

rulemaking proceeding. 

PHMSA considered the comments 

regarding one-call standards, but 

believes those types of standards would 

be overly-prescriptive and confusing for 

the purposes of this proposed rule. This 

proposed rulemaking does not impede 

any party’s legal rights to pursue 

restitution of damages from any other 

party involved in a damage incident. 

Implementing 911 Requirement 

AGA commented that implementation 

of the 911 requirement can result in 

some unintended consequences that 

may actually cause behaviors and 

actions that are detrimental to pipeline 

safety. It noted that as a practice in 

responding to 911 calls being made, fire 

departments often bill their costs to the 

excavator and in some circumstances 

the natural gas utility. Very often, the 

excavator is a professional contractor. 

As a result, excavators are having 

second thoughts about dialing 911 when 

damage results in a leak, particularly on 

smaller diameter plastic pipe that is 

viewed as an ‘‘easy’’ repair for 

professional contractors who think they 

have the ability and the means to make 

an acceptable repair. Having unqualified 

personnel making repairs on natural gas 

lines can lead to catastrophic 

consequences. 

AGA also noted that natural gas 

utilities try to foster a culture that 

encourages a contractor to notify the gas 

utility promptly when a pipe is dented 

or nicked, its coating scratched, or even 

when a tracer wire is cut or anode wire 

broken. The motivation for the utility is 

that it can respond and determine what 

repair actions are needed, to ensure the 

pipe will not fail or leak at some point 

in the future, and that the pipe can be 

located in response to future excavation 

activity. The utilities have developed 

relationships with contractors so that 

they trust they will not be billed in 

circumstances where the contractors are 

forthcoming and can demonstrate they 

have made a reasonable attempt to dig 

responsibly and follow one-call and 

state statutes. 

AGA, Missouri PSC, NUCA, Southern 

California Gas, California Gas and 

Electric, and others expressed concern 

that the volume of calls resulting from 

this requirement may be unmanageable 

and could result in limited emergency 

response resources being used in 

situations that really do not necessitate 

an emergency response. AGA, Southern 

California Gas, and California Gas and 

Electric noted, for example, that as a 

result fire departments could have to 

respond to every excavation damage 

incident reported via 911, including 

breaks on small diameter service lines 

where the gas may be safely venting to 

the atmosphere and public safety is 

generally not threatened. The response 

of fire departments to potentially 

thousands of inconsequential 

excavation damages could compromise 

their ability to respond to other events 

that are actually life-threatening 

emergencies. Missouri PSC was aware of 

one major gas distribution operator that 

is having its practice of advising 

excavators to call 911 questioned by 

local emergency officials. 

MidAmerican Energy Company, 

Paiute Pipeline and Southwest Gas 

Corporation commented that the 911 

requirement should not be mandated for 

all releases of hazardous materials. If a 

violation of the excavation damage 

prevention laws results in a public 

safety emergency that may endanger life 

or cause serious bodily harm or damage 

to property, then, as for any public 

safety emergency, the use of the 911 

telephone notification system would be 

appropriate. Otherwise, calling 911 

should not be necessary. 

Regarding emergency responders, 

NUCA commented that the proposed 

rule should address the role of first 

responders in situations where the 

escape of flammable, toxic, or corrosive 

product is released as a result of damage 

to an underground pipeline. NUCA 

noted that if a 911 call is made, the 

responders must be trained in how to 

respond to the situation effectively. 

NUCA noted that traditionally, 

representatives from the company that 

owns the gas or hazardous liquid 

pipeline are best educated and equipped 

to handle these situations. 

Nicor commented that the 911 

requirement is most appropriate when 

someone other than the pipeline owner 

or operator damages the pipeline. 

Operators who accidentally damage 

their own facilities should have the 

flexibility of calling 911 if they need 

further assistance in making an area 

safe. As a basis, Nicor cited that 

pipeline operators are also sometimes 

excavators and that provisions should 

be developed for instances where an 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19827 

operator’s excavation crew accidentally 

damages its own facility and that results 

in a release of natural gas. The crews are 

trained and qualified to handle 

emergency response and to make 

repairs. Often times, the release of gas 

is secured very quickly and should not 

warrant calling 911. Additionally, after 

responding to a 911 call involving 

excavator damage and a release of 

natural gas from a pipeline, some fire 

departments have sent invoices to 

natural gas operators for costs incurred 

for hazmat response. Nicor noted that 

the inability of an operator to exercise 

discretion in calling 911 may lead to 

strained relationships between natural 

gas pipeline operators and fire 

departments. 

NUCA, Paiute Pipeline and Southwest 

Gas Corporation commented that 

PHMSA should specify that excavators 

must call 911 if the ‘‘damage results in 

the escape of any flammable, toxic, or 

corrosive gas or liquid,’’ as specified in 

the PIPES Act, instead of trying to 

include all of these under the umbrella 

of ‘‘hazardous products.’’ They noted 

that excavators are not emergency 

responders, and the regulation should 

be as specific as possible to distinguish 

between natural gas and other gases or 

liquids to identify what products are 

considered ‘‘hazardous’’ by PHMSA. 

Michigan PSC noted that 

implementing the 911 requirement will 

not cause any unintended consequences 

in practice. Paiute and Southwest Gas 

Corporation also commented that all 

API RP 1162 related communications 

and activities should promote the 

requirement of calling 911 if a pipeline 

damage incident causes a release of 

product. They also noted that although 

they cannot reference any empirical 

evidence that identifies any unintended 

consequences of implementing the 911 

requirement, as excavators become 

better educated on this requirement, 

calls to emergency response agencies 

will likely increase. 

Response 

PHMSA considered all of the 

comments pertaining to implementing 

the 911 requirement. The PIPES Act 

requires excavators to promptly call the 

911 emergency telephone number if a 

damage results in the escape of any 

flammable, toxic, or corrosive gas or 

liquid that may endanger life or cause 

serious bodily harm or damage to 

property. PHMSA understands that 

excavators and utility operators are 

sometimes required to reimburse 911 

centers for the cost of dispatching 

emergency response personnel to a 

damage site. Therefore, PHMSA is 

proposing that excavators must call 911 

in these instances, but may exercise 

discretion as to whether to request that 

the 911 operator dispatch emergency 

response personnel to the damage site. 

PHMSA welcomes additional comments 

on the 911 issue. 

Reference to API RP 1166 

AGA commented that API RP 1166 

does not apply in developing standards 

for excavators in that it does not apply 

to natural gas distribution operators. 

AGA noted that this standard is a useful 

resource for gas transmission pipeline 

operators, but that the decision to 

monitor and possibly observe any 

excavation activity is at the discretion of 

the pipeline operator. 

Several commenters noted that the 

CGA Best Practices and API 

Recommended Practice 1166 could be 

used to inform the development of such 

standards, but that the minimum 

requirements stated in 49 U.S.C. 60114 

are appropriate. Paiute Pipeline and 

Southwest Gas Corporation commented 

that PHMSA should refrain from citing 

best practices from any organization, 

publication or individual entity as 

regulation. 

Response 

PHMSA is not proposing to use API 

RP 1166 to inform the development of 

the Federal requirement for enforcement 

and believes the requirements stated in 

the PIPES Act are appropriate. 

D. Adjudication Process 

Section IV.D of the ANPRM sought 

comment on the adjudication process 

that PHMSA would use if it cited an 

excavator for failure to comply with 

Federal requirements established by this 

rulemaking process in a state where 

PHMSA has deemed the enforcement 

program inadequate. It noted that 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 

supporting the allegations; file a written 

response to the allegations; request a 

hearing; be represented by counsel if the 

excavator 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 

PHMSA’s 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 were 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 

criteria found in 49 U.S.C. 60122(b) 

apply to excavators? 

All Parties 

AGC and NUCA commented that the 

adjudication process outlined by 

PHMSA seems fair; however, PHMSA 

must carefully consider that if an 

excavator is not found to be at fault, 

excavators must maintain the right to 

pursue damages for downtime and the 

ability to recover legal expenses. 

Allowing excavators all rights to due 

process should be recognized, and the 

same privileges afforded to others 

subject to Federal administrative 

enforcement (i.e., pipeline operators) 

should be afforded to excavators. NUCA 

noted that ensuring excavators the right 

to pursue damages (i.e., downtime 

expenses), must be considered when 

establishing a new Federal adjudication 

process. NUCA also noted that 

excavators regularly lose significant 

revenue in downtime expenses after 

having to shut down projects because of 

underground facilities that were either 

not marked or marked inaccurately. 

According to NUCA, this is an 

enormous financial problem facing 

professional excavators, and one that 

must be addressed in the PHMSA 

regulation. AGC agreed that hearings 

should be open to the public and 

conducted at one of PHMSA’s five 

regional offices or an alternative 

location accessible to all parties. 

MidAmerican Energy Company also 

noted that participation in any process 

should not preclude the ability to 

pursue further legal remedies a 

participant may determine to be 

appropriate. 

USIC Locating Services commented 

that whatever process is established 

should provide interested parties a right 

of intervention so that the resulting 

record accurately reflects the positions 

of all affected parties. 


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Nicor noted that excavators who are 

also operators of pipelines regulated 

under 49 CFR Part 192 already fall 

under the enforcement requirements of 

Subpart B in 49 CFR Part 190. If PHMSA 

determines that it must take 

enforcement action against other 

excavators the same process could be 

followed. 

Response 

PHMSA agrees that an excavator must 

maintain the right to pursue damages for 

downtime and the ability to recover 

legal expenses if the excavator is not 

found to be at fault in an excavation 

damage incident investigation; this 

proposed rule does not infringe upon 

those rights. In addition, this proposed 

rule is intended to establish 

adjudication procedures that protect the 

rights of excavators to due process. 

PHMSA also believes that interested 

parties should have the opportunity to 

attend and observe hearings and the 

opportunity to request intervention 

status within the PHMSA adjudication 

process so that the resulting record 

accurately reflects the position of all 

affected parties. 

Appeals 

AGC commented that the excavator 

should have the opportunity to petition 

for reconsideration of PHMSA’s 

administrative decision, and judicial 

review of final agency action should be 

available to the same extent it is 

available to a pipeline operator. 

Similarly, the three Texas pipeline 

associations commented that there 

should be an appeals process for a party 

to challenge the outcome of the hearing. 

Response 

The process for an excavator to 

request reconsideration or appeal a 

finding of violation by PHMSA is 

provided in this proposed rule. 

Arbitration and Advisory Committees 

Spectra Energy commented that each 

state should have a clearly defined 

process for arbitration or review of 

enforcement actions for violations of 

excavation damage prevention 

regulations. Spectra suggested that one 

possible method is to have an 

independent panel that would review 

and recommend final enforcement 

action. The panel should include 

members that represent the one-call 

center, pipeline operators and the 

excavator community. 

Response 

As noted above, committees 

composed of representatives of all 

excavation damage prevention 

stakeholders to advise enforcement 

agencies are a proven method of 

ensuring fair and balanced excavation 

damage prevention law enforcement. 

Such may be the case with arbitration 

committees. While PHMSA does not 

propose to use an advisory committee 

for Federal administrative enforcement 

proceedings, PHMSA does not object to 

a state’s use of an advisory committee in 

the state enforcement process. 

Civil Penalties 

AGA noted that PHMSA must 

distinguish between levying any fines 

on entities or persons engaged in 

excavation damage prevention 

activities, as opposed to the fines and 

enforcement actions PHMSA 

traditionally takes against pipeline 

operators under 49 U.S.C. 60122(a). 

Similarly, Paiute Pipeline and 

Southwest Gas Corporation commented 

that the penalty criteria found in 49 

U.S.C. 60122(b) are excessive to the 

average excavator and to the average 

excavation damage. 

Paiute Pipeline, Southwest Gas 

Corporation, and Missouri PSC 

commented that PHMSA should work 

with the individual states on invoking 

civil penalties in their individual laws. 

Missouri PSC agreed, commenting that 

unless the civil penalty provisions 

existing in a state’s law are the reason 

a state’s enforcement program is deemed 

inadequate, the state’s penalties should 

be applied rather than the Federal 

penalties. 

Paiute Pipeline and Southwest Gas 

Corporation commented that the 

adjudication process outlined is 

generally adequate, but to make the 

process fair and efficient a step should 

be added allowing an alleged violator to 

accept PHMSA’s recommendation for a 

reduced penalty and agreement to take 

some remedial action such as attending 

an educational seminar on underground 

excavation damage prevention and 

pipeline safety. 

WTBA commented that civil penalties 

should not apply to excavators unless 

there was a truly unlawful act of 

negligence. 

MidAmerican Energy Company 

agreed that the penalty criteria found in 

49 U.S.C. 60122(b) are reasonable to 

consider in evaluating the amount of a 

civil penalty to assess for a violation of 

the one-call provisions. MidAmerican 

also questions whether the violator’s (1) 

ability to pay and (2) any effect on the 

ability of the violator to continue doing 

business are necessarily relevant criteria 

in all cases. MidAmerican noted that the 

remainders of the penalty criteria 

appear to provide the flexibility for the 

agency to tailor the assessment of a civil 

penalty to the specific circumstances of 

a particular violation. It considers that 

‘‘an egregious violation or a pattern of 

violations evidencing an intentional or 

negligent disregard of the one-call 

provisions could present a serious threat 

to the public safety. In those, hopefully 

unusual, cases, the dangers presented by 

an excavator continuing to exhibit such 

a callous disregard for the public safety 

should take precedence over the effect 

that the assessment of a civil penalty 

might have on the violator’s ability to 

pay or to continue doing business. The 

Illinois administrative regulations also 

contain these two penalty criteria.’’ 

The three Texas pipeline associations 

commented that regardless of process, 

any person or entity found guilty of 

violating the Federal requirements 

should face financial penalties that 

provide incentives for future 

compliance and reflect the seriousness 

of the violation. 

Response 

PHMSA proposes to use the civil 

penalty provisions described in 49 

U.S.C. 60101 et seq. as a basis for civil 

penalties levied against excavators 

subject to this proposed rule. PHMSA 

believes this approach is preferable to 

establishing alternate civil penalty 

provisions specific to this proposed 

rule. PHMSA proposes to take into 

account a violator’s ability to pay, 

ability to continue to do business, and 

the seriousness of the violation when 

determining appropriate civil penalties. 

PHMSA seeks comment on the 

proposed use of civil penalties. 

Formality 

AGA, AGC, MidAmerican Energy, and 

Missouri PSC agree that the 

adjudication process noted in the 

ANPRM is not too formal. API, AOPL, 

and NUCA all support the process as 

described. API and AOPL commented 

that the adjudication should allow the 

hearing officer sufficient flexibility to 

conduct the proceeding promptly and 

efficiently, such that decisions may be 

rendered without undue delay. 

Panhandle Energy and EPPG both 

suggested that the processes defined in 

49 CFR Part 190 be followed. Spectra 

Energy Transmission noted that when 

an enforcement action relating to 

violation of excavation damage 

prevention regulations is initiated, the 

excavator and pipeline operator should 

have the opportunity for a hearing. 

AGA commented that the 

adjudication process must be a formal 

one, where the excavator is able to 

defend his or her actions, explaining 

how and why the damage occurred, and 

to contest an alleged violation. AGA and 


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AGC both noted that the adjudication 

process must provide for formal rules of 

evidence, transcriptions, and discovery, 

to conduct fair proceedings that ensure 

all parties’ rights to due process are 

maintained. AGC commented that a 

formal adjudication process should be 

adopted to preserve the rights of an 

excavator charged with a violation. The 

process should include the right(s) to: 

receive written notice of the allegations, 

including a description of the evidence 

the allegations are based on; allow for a 

submission in response to the 

allegations; and, allow for an informal 

hearing with counsel if necessary. AGC 

also noted that the adjudication 

procedure should thoroughly examine 

the evidence and allow for submission 

of relevant information and testimony 

from witnesses to adjudicate the 

allegation of violation thoroughly. 

MidAmerican Energy commented that 

while the proposed process strikes the 

appropriate balance, strict adherence to 

the formal rules of evidence or extensive 

discovery is not necessary or 

appropriate. MidAmerican also 

suggested that transcripts could be 

optional at the expense of the state or 

requesting party. 

Paiute Pipeline and Southwest Gas 

Corporation commented that the 

adjudication process should remain at 

the state level, and not a formal Federal 

process. They noted that excavators 

would appreciate the efficiency of 

maintaining the adjudication process at 

the state level, and that if damages are 

involved, there is always the claim/ 

court system for excavators, operators 

and states with enforcement authority 

for billable and damage awards. They 

consider that PHMSA should only step 

in when the entire program is deemed 

inadequate, and should not mandate 

enforcement at the Federal level but 

rather partner with the states to enhance 

the enforcement at the state or local 

level. They consider that PHMSA’s 

support of states and their excavation 

damage prevention programs will 

ultimately provide the excavation 

damage prevention authority and 

enforcement PHMSA is seeking with the 

proposed rulemaking procedures. They 

commented that PHMSA may want to 

include a provision for the excavating 

community to submit a request for 

Federal involvement if they feel the 

process is unfair and their rights are not 

being maintained at the state level. 

WTBA commented that the proposed 

process appears to be too formal and 

does not sound like an ‘‘informal 

hearing.’’ It noted that there must be an 

opportunity for a true informal hearing, 

at a location near the project, to discuss 

actual facts of the incident. It also 

commented that an informal hearing 

must involve individuals that are 

knowledgeable of construction and 

design that are capable of determining 

whether reasonable efforts were made 

by all parties involved. 

APGA agrees that enforcement 

proceedings should be conducted at the 

PHMSA regional office level rather than 

headquarters. APGA also noted that 

Virginia has an excavation damage 

prevention law enforcement program 

that involves a panel comprised of 

excavators, facility owners and others to 

advise on the appropriate level of 

penalties, if any. APGA suggests that 

PHMSA consider whether a similar 

system could work for any Federal 

administrative enforcement actions. 

Response 

The majority of commenters support 

PHMSA’s approach for the adjudication 

process proposed in this NPRM and that 

the process is sufficiently formal to 

protect the rights of excavators to due 

process, but not so formal as to be 

overly burdensome for alleged violators. 

PHMSA is not proposing to use an 

advisory panel modeled after Virginia’s 

excavation damage prevention program, 

but instead to follow the process 

described in this proposed rule. 

E. Existing Requirements Applicable to 

Owners and Operators of Pipeline 

Facilities 

Section IV.E of the ANPRM invited 

commenters to submit their feedback 

and comments on the adequacy of 

PHMSA’s existing requirements for 

pipeline operators to participate in onecall 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 

excavation damage prevention programs 

that require, in part, that the operator 

provide for marking its pipelines in the 

area of an excavation for which the 

excavator has submitted a locate 

request. 

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. 

Federal One-Call 

No commenters that addressed the 

existing pipeline safety damage 

prevention regulations, 49 CFR 192.614 

and 195.442, considered these 

requirements to be inadequate, nor did 

they believe that PHMSA needed to 

make these requirements more detailed 

or specific. Several commented that to 

do otherwise would lead to confusion 

where the Federal requirements were 

different from state standards. 

Commenters suggested that PHMSA 

should enforce states’ laws and that 

states already have the ability to 

establish more detailed regulations on 

pipeline operators for facility locating 

and marking. AGA considers that it is 

not logical for PHMSA to suggest that 

Federal requirements addressing onecall types of issues can be imposed at 

the national level. They consider that 

adding more details at the Federal level 

will be problematic since it may conflict 

with existing state regulations and 

cannot take unique state laws into 

consideration. AGA also commented 

that no language in the Federal 

regulations is necessary regarding the 

ability of excavators to request a 

consultation or job-site meeting with 

underground facility operators, since 

most one-call centers already have a 

procedure for this. 

AGC suggested that PHMSA 

encourage state regulatory authorities to 

equally enforce state laws applicable to 

underground facility owners and 

operators who fail to respond to a 

location request or fail to take 

reasonable steps, in response to such a 

request. AGC also noted that state 

enforcement programs should consider 

the costs involved for excavators when 

they incur downtime due to a violation 

by an operator or a locator. 

Nicor commented that state 

authorities must make enforcement of 

owner/operator requirements a higher 

priority and should consider the CGA 

Best Practices. 

API and AOPL commented that 

pipeline operators should be held to the 

same standards as other facility owners 

and excavators, and should be held 

accountable to respond to locate 

requests in a timely and accurate 

manner. They noted, however, that they 

do support regulations, such as those in 

California (CA Govt. Code Section 

4216–4216.9), that impose more explicit 

and additional requirements for both the 

owner and the excavator when 

excavating in close proximity to high 

priority, subsurface installations. 

GulfSafe commented that offshore 

operators are exempt from being 

members of a one-call system. It noted 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
19830 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

that this was an appropriate exemption 

at the time it was written but may need 

revisiting as technology has progressed 

over the past two decades to be a more 

practicable solution to prevent damages 

offshore. GulfSafe also suggested that 

this is the suitable time to address the 

enforcement issue that goes along with 

this exemption, since there are large 

differences in state laws regarding 

offshore pipelines and enforcement may 

fall to Federal agencies by default. 

Ancillary to this concern, Michigan 

Consolidated Gas commented that 

PHMSA consider the excavator’s ability 

to call in an unreasonable number of 

tickets per day causing resource 

allocation issues for locate personal. 

Also, Michigan PSC recommended that 

all meetings between an excavator and 

operator be documented and digital 

pictures be taken at job-sites prior to 

excavation activity. 

Response 

PHMSA does not have the authority 

to enforce state laws. PHMSA believes 

that specifying the number of tickets per 

day an excavator can create, as well as 

how meetings between excavators and 

operators should be documented as part 

of the Federal requirement is not 

appropriate given the ‘‘backstop’’ (i.e., 

Federal enforcement only in the absence 

of adequate state enforcement) nature 

and use of the Federal authority. In 

addition, PHMSA believes that 

addressing the exemption for offshore 

operators is outside the scope of this 

NPRM. 

V. Regulatory Analysis and Notices 

The proposed rule would amend the 

Federal Pipeline Safety Regulations 

(49 CFR Parts 190–199) to establish 

criteria and procedures PHMSA will use 

to determine the adequacy of state 

pipeline excavation damage prevention 

law enforcement program. 

Statutory/Legal Authority for This 

Rulemaking 

PHMSA’s general authority to publish 

this proposed rulemaking and prescribe 

pipeline safety regulations is codified at 

49 U.S.C. 60101 et seq. Section 2(a) of 

the PIPES Act (Pub. L. 109–468) 

authorizes the Secretary of 

Transportation to enforce pipeline 

damage prevention requirements against 

persons who engage in excavation 

activity in violation of such 

requirements provided that, through a 

proceeding established by rulemaking, 

the Secretary has determined that the 

relevant state’s enforcement is 

inadequate to protect safety. 

Executive Order 12866, Executive Order 

13563, and DOT Policies and 

Procedures 

This proposed rule is a significant 

regulatory action under section 3(f) of 

Executive Order 12866 (58 FR 51735) 

and 13563, therefore, was reviewed by 

the Office of Management and Budget. 

This proposed rule is significant under 

the Regulatory Policies and Procedures 

of the Department of Transportation 

(44 FR 11034). 

Executive Orders 12866 and 13563 

require 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.’’ 

Because excavation damage is one of 

the major causes of pipeline incidents, 

the expected benefits of this rulemaking 

action are an increased deterrent to 

violations of one-call requirements and 

the attendant reduction in pipeline 

incidents and accidents caused by 

excavation damage. Failure to use an 

available one-call system is a known 

cause of pipeline accidents. 

A regulatory evaluation containing a 

statement of the purpose and need for 

this rulemaking and an analysis of the 

costs and benefits is available in the 

docket. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.), PHMSA must 

consider whether rulemaking actions 

would have a significant economic 

impact on a substantial number of small 

entities. Pursuant to 5 U.S.C. 603, 

PHMSA has made an initial 

determination that the proposed rule 

will not have a significant economic 

impact on a substantial number of small 

entities. This determination is based on 

the minimal cost to excavators to call 

the one-call center. In addition, the 

proposed rule is procedural in nature 

and its purpose is to set forth an 

administrative enforcement process for 

actions that are already required. The 

proposed rule would appear to have no 

material effect on the costs or burdens 

of compliance for regulated entities, 

regardless of size. Thus, the marginal 

cost, if any, that would be imposed by 

the rule on regulated entities, including 

small entities, would not be significant. 

Based on the facts available about the 

expected impact of this rulemaking, I 

certify that this proposed rulemaking 

will not have a significant economic 

impact on a substantial number of small 

entities. PHMSA invites public 

comments on this certification. 

Since the Regulatory Flexibility Act 

does not require an initial (or final) 

regulatory flexibility analysis when a 

rule will not have a significant 

economic impact on a substantial 

number of small entities, such an 

analysis is not necessary for this 

proposed rule. Nonetheless, PHMSA 

invites public comment on the proposed 

rule’s effect on the costs, profitability, 

competitiveness of, and employment in 

small entities to ensure that no 

significant economic impact on a 

substantial number of small entities 

would be overlooked. The following 

information is provided to assist in such 

comment: 

Description of the small entities to 

which the proposed rule will apply. 

In general, the enforcement process 

set forth in the proposed rule will 

potentially apply to any person 

conducting excavation activity in the 

vicinity of a pipeline who fails to call 

the one-call center or otherwise violates 

applicable requirements. The rule does 

not apply to homeowners excavating 

with hand tools on their own property. 

A precise estimate of the number of 

small entities is not currently feasible 

because Federal administrative 

enforcement will only be considered in 

states that do not have an adequate 

enforcement program and 

determinations on state programs turn 

on a number of factors that will require 

a factual analysis on a case-by-case 

basis. PHMSA seeks any information or 

comment on these issues, as noted 

below. 

Description of the projected reporting, 

recordkeeping and other compliance 

requirements of the proposed rule, 

including an estimate of the classes of 

small entities that will be subject to the 

requirement and the type of professional 

skills necessary for preparation of the 

report or record. 

This proposed rule imposes no 

additional reporting costs to businesses, 

including small businesses. The 

proposed rule is procedural in nature 

and its purpose is to set forth an 

administrative enforcement process for 

actions that are already required. The 

costs impacts associated with this 

proposed rulemaking would be imposed 

on Federal and state governments. 

Identification, to the extent practicable, 

of all relevant Federal rules that may 

duplicate, overlap or conflict with the 

proposed rule. 

PHMSA is unaware of any 

duplicative, overlapping, or conflicting 

Federal rules. As noted below, PHMSA 

seeks comments and information about 

any such rules, as well as any industry 


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rules or policies that would conflict 

with the requirements of the proposed 

rule. 

Description of any significant 

alternatives to the proposed rule that 

accomplish the stated objectives of 

applicable statutes and that minimize 

any significant economic impact of the 

proposed rule on small entities. 

PHMSA seeks comments and 

information about any alternatives such 

as: (1) Establishment of differing 

compliance or reporting requirements or 

timetables that take into account the 

resources available to small entities; 

(2) clarification, consolidation, or 

simplification of compliance and 

reporting requirements under the rule 

for such small entities; (3) any 

exemption from coverage of the rule, or 

any part thereof, for such small entities. 

Executive Order 13175 

PHMSA has analyzed this proposed 

rule according to the principles and 

criteria in Executive Order 13175, 

‘‘Consultation and Coordination With 

Indian Tribal Governments.’’ Because 

this proposed rule would not 

significantly or uniquely affect the 

communities of the Indian tribal 

governments or impose substantial 

direct compliance costs, the funding 

and consultation requirements of 

Executive Order 13175 do not apply. 

Paperwork Reduction Act 

Pursuant to 5 CFR 1320.8(d), PHMSA 

is required to provide interested 

members of the public and affected 

agencies with an opportunity to 

comment on information collection and 

recordkeeping requests. PHMSA 

estimates that the proposals in this 

rulemaking will cause an increase to the 

currently approved information 

collection titled ‘‘Gas Pipeline Safety 

Program Certification and Hazardous 

Liquid Pipeline Safety Program 

Certification’’ identified under Office of 

Management and Budget (OMB) Control 

Number 2137–0584. Based on the 

proposals in this rule, PHMSA estimates 

a 20% increase to states with gas 

pipeline safety program certifications/ 

agreements. PHMSA estimates the 

increase at 12 hours per respondent for 

a total increase of 612 hour (12 hrs*51 

respondents). As a result, PHMSA will 

submit an information collection 

revision request to OMB for approval 

based on the requirements in this 

proposed rule. The information 

collection is contained in the pipeline 

safety regulations, 49 CFR Parts 190– 

199. The following information is 

provided for that information collection: 

(1) Title of the information collection; 

(2) OMB control number; (3) Current 

expiration date; (4) Type of request; (5) 

Abstract of the information collection 

activity; (6) Description of affected 

public; (7) Estimate of total annual 

reporting and recordkeeping burden; 

and (8) Frequency of collection. The 

information collection burden for the 

following information collection will be 

revised as follows: 

Title: Gas Pipeline Safety Program 

Certification and Hazardous Liquid 

Pipeline Safety Program Certification. 

OMB Control Number: 2137–0584. 

Current Expiration Date: 6/30/2012. 

Abstract: A state must submit an 

annual certification to assume 

responsibility for regulating intrastate 

pipelines, and certain records must be 

maintained to demonstrate that the state 

is ensuring satisfactory compliance with 

the pipeline safety regulations. PHMSA 

uses that information to evaluate a 

state’s eligibility for Federal grants. 

Affected Public: State and local 

governments. 

Annual Reporting and Recordkeeping 

Burden: 

Total Annual Responses: 67. 

Total Annual Burden Hours: 4,532 

(this estimate includes an increase of 

612 hours). 

Frequency of Collection: Annually 

and occasionally at states’ discretion. 

Requests for a copy of this 

information collection should be 

directed to Cameron Satterthwaite, 

Office of Pipeline Safety (PHP–30), 

Pipeline Hazardous Materials Safety 

Administration (PHMSA), 2nd Floor, 

1200 New Jersey Avenue SE., 

Washington, DC 20590–0001, 

Telephone (202) 366–4595. 

Comments are invited on: 

(a) The need for the proposed 

collection of information for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(b) The accuracy of the agency’s 

estimate of the burden of the revised 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(c) Ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and 

(d) Ways to minimize the burden of 

the collection of information on those 

who are to respond, including the use 

of appropriate automated, electronic, 

mechanical, or other technological 

collection techniques. 

Send comments directly to the Office 

of Management and Budget, Office of 

Information and Regulatory Affairs, 

Attn: Desk Officer for the Department of 

Transportation, 725 17th Street NW., 

Washington, DC 20503. Comments 

should be submitted on or prior to June 

1, 2012. 

Unfunded Mandates Reform Act of 1995 

This proposed rule would not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It would not result in costs of 

$141 million, adjusted for inflation, or 

more in any one year 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 of the proposed 

rulemaking. 

National Environmental Policy Act 

PHMSA analyzed this proposed rule 

in accordance with section 102(2)(c) of 

the National Environmental Policy Act 

(42 U.S.C. 4332), the Council on 

Environmental Quality regulations (40 

CFR Parts 1500–1508), and DOT Order 

5610.1C, and has preliminarily 

determined that this action will not 

significantly affect the quality of the 

human environment. A preliminary 

environmental assessment of this 

rulemaking is available in the docket 

and PHMSA invites comment on 

environmental impacts of this rule, if 

any. 

Executive Order 13132 

PHMSA has analyzed this proposed 

rule according to the principles and 

criteria of Executive Order 13132 

(‘‘Federalism’’). A rule has implications 

for federalism under Executive Order 

13132 if it has a substantial direct effect 

on state or local governments, on the 

relationship between the national 

government and the states, or on the 

distribution of powers and 

responsibilities among the various 

levels of government. 

The Federal pipeline safety statutes in 

49 U.S.C. 60101, et seq., create a strong 

Federal-state partnership for ensuring 

the safety of the Nation’s interstate and 

intrastate pipelines. That partnership 

permits states to regulate intrastate 

pipelines after they certify to PHMSA, 

among other things, that they have and 

are enforcing standards at least as 

stringent as the Federal requirements, 

and are promoting a damage prevention 

program. PHMSA provides Federal 

grants to states to cover a large portion 

of their pipeline safety program 

expenses, and PHMSA also makes 

grants available to assist in improving 

the overall quality and effectiveness of 

their damage prevention programs. 

In recognition of the value of this 

close partnership, PHMSA has made 

and continues to make every effort to 

ensure that our state partners have the 


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19832 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

opportunity to provide input on this 

rulemaking. For example, at the ANPRM 

stage, PHMSA sought advice from the 

National Association of State Pipeline 

Safety Representatives (NAPSR) and 

offered NAPSR officials the opportunity 

to meet with PHMSA and discuss issues 

of concern to the states. As a result of 

these consultation efforts with state 

officials and their comments on the 

ANPRM, PHMSA became aware of state 

concerns regarding the rigorousness of 

the criteria for program effectiveness. 

PHMSA has taken these concerns into 

account in developing the proposed 

criteria in the NPRM. State and local 

governments will be able to raise any 

other federalism issues during the 

comment period for this NPRM and we 

invite state and local officials with an 

interest in this rulemaking to comment 

on any impacts to their governments. 

Under the proposed rule, Federal 

administrative enforcement against an 

excavator that violates damage 

prevention requirements would be taken 

only in the demonstrable absence of 

enforcement by a state authority. 

Additionally, the proposed rule would 

establish a framework for evaluating 

state programs individually so that the 

exercise of Federal administrative 

enforcement in one state has no effect 

on the ability of all other states to 

continue to exercise state enforcement 

authority. This proposed rule would not 

preempt state law in the state where the 

violation occurred, or any other state, 

but would authorize Federal 

enforcement in the limited instance 

explained above. Finally, a state that 

establishes an effective damage 

prevention enforcement program has the 

ability to be recognized by PHMSA as 

having such a program. 

For the reasons discussed above, and 

based on the results of our consultations 

with the states, PHMSA has concluded 

the proposed rule will not have a 

substantial direct effect on the states, 

the relationship between the national 

government and the states, or the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, this 

proposed rule does not impose 

substantial direct compliance costs on 

state and local governments. 

Accordingly, the consultation and 

funding requirements of Executive 

Order 13132 do not apply. 

Executive Order 13211 

This proposed rule is not a 

‘‘significant energy action’’ under 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use). It is not likely to 

have a significant adverse effect on 

supply, distribution, or energy use. 

Further, the Office of Information and 

Regulatory Affairs has not designated 

this proposed rule as a significant 

energy action. 

Privacy Act Statement 

Anyone may search the electronic 

form of all comments received for any 

of our dockets. You may review DOT’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (70 FR 19477) or visit http:// 

dms.dot.gov. 

List of Subjects 

49 CFR Part 196 

Administrative practice and 

procedure; Pipeline safety; Reporting 

and recordkeeping requirements. 

49 CFR Part 198 

Grant programs-transportation; 

Pipeline safety; Reporting and 

recordkeeping requirements. 

For the reasons discussed in the 

preamble, PHMSA proposes to amend 

49 CFR Subchapter D as follows: 

1. Part 196 is added to read as follows: 

PART 196—PROTECTION OF 

UNDERGROUND PIPELINES FROM 

EXCAVATION ACTIVITY 

Subpart A—General 

Sec. 

196.1 What is the purpose and scope of this 

part? 

196.3 Definitions. 

Subpart B—One-Call Damage Prevention 

Requirements 

Sec. 

196.101 What is the purpose and scope of 

this subpart? 

196.103 What must an excavator do to 

protect underground pipelines from 

excavation-related damage? 

196.105 Are there any exceptions to the 

requirement to use one-call before 

digging? 

196.107 What must an excavator do if a 

pipeline is damaged by excavation 

activity? 

196.109 What must an excavator do if 

damage to a pipeline from excavation 

activity causes a leak where product is 

released from the pipeline? 

196.111 What if a pipeline operator fails to 

respond to a locate request or fails to 

accurately locate and mark its pipeline? 

Subpart C—Administrative Enforcement 

Process 

Sec. 

196.201 What is the purpose and scope of 

this subpart? 

196.203 What is the administrative process 

PHMSA will use to conduct enforcement 

proceedings for alleged violations of 

excavation damage prevention 

requirements? 

196.205 Can PHMSA assess administrative 

civil penalties for violations? 

196.207 What are the maximum 

administrative civil penalties for 

violations? 

196.209 May other civil enforcement 

actions be taken? 

196.211 May criminal penalties be 

imposed? 

Authority: 49 U.S.C. 60101 et seq. 

Subpart A—General 

§ 196.1 What is the purpose and scope of 

this part? 

This part prescribes the minimum 

requirements that excavators must 

follow to protect underground pipelines 

from excavation-related damage. It also 

establishes an enforcement process for 

violations of these requirements. 

§ 196.3 Definitions. 

Damage or excavation damage means 

any impact that results in the need to 

repair or replace a pipeline due to a 

weakening, or the partial or complete 

destruction, of the pipeline, including, 

but not limited to, the pipe, its 

protective coating, lateral support, 

cathodic protection or the housing for 

the line device or facility. 

Excavation means any operation 

using non-mechanical or mechanical 

equipment or explosives used in the 

movement of earth, rock or other 

material below existing grade. This 

includes, but is not limited to, augering, 

blasting, boring, demolishing, digging, 

ditching, dredging, drilling, driving-in, 

grading, plowing-in, pulling-in, ripping, 

scraping, trenching, and tunneling. This 

does not include homeowners 

excavating on their own property with 

hand tools. 

Excavator means any person or legal 

entity, public or private, proposing to or 

engaging in excavation. 

One-call means a notification system 

through which a person can notify 

pipeline operators of planned 

excavation to facilitate the locating and 

marking of any pipelines in the 

excavation area. 

Pipeline means all parts of those 

physical facilities through which gas, 

carbon dioxide, or a hazardous liquid 

moves in transportation, including, but 

not limited to, pipe, valves, and other 

appurtenance attached or connected to 

pipe, pumping units, compressor units, 

metering stations, regulator stations, 

delivery stations, holders, fabricated 

assemblies, and breakout tanks. 


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Subpart B—One-Call Damage 

Prevention Requirements 

§ 196.101 What is the purpose and scope 

of this subpart? 

This subpart prescribes the minimum 

requirements that excavators must 

follow to protect underground pipelines 

from excavation-related damage. 

§ 196.103 What must an excavator do to 

protect underground pipelines from 

excavation-related damage? 

Prior to commencing excavation 

activity where an underground gas or 

hazardous liquid pipeline may be 

present, the excavator must: 

(a) Use an available one-call system 

before excavating to notify operators of 

underground pipeline facilities of the 

timing and location of the intended 

excavation; 

(b) If underground pipelines exist in 

the area, wait for the pipeline operator 

to arrive at the excavation site and 

establish and mark the location of its 

underground pipeline facilities before 

excavating; 

(c) Excavate with proper regard for the 

marked location of pipelines an operator 

has established by respecting the 

markings and taking all practicable 

steps to prevent excavation damage to 

the pipeline; and 

(d) Make additional use of one-call as 

necessary to obtain locating and 

marking before excavating if additional 

excavations will be conducted at other 

locations. 

§ 196.105 Are there any exceptions to the 

requirement to use one-call before digging? 

Homeowners using only hand tools, 

rather than mechanized excavating 

equipment, on their own property are 

not required to use a one-call prior to 

digging. 

§ 196.107 What must an excavator do if a 

pipeline is damaged by excavation activity? 

If a pipeline is damaged in any way 

by excavation activity, the excavator 

must report such damage to the pipeline 

operator, whether or not a leak occurs, 

at the earliest practicable moment 

following discovery of the damage. 

§ 196.109 What must an excavator do if 

damage to a pipeline from excavation 

activity causes a leak where product is 

released from the pipeline? 

If damage to a pipeline from 

excavation activity causes the release of 

any flammable, toxic, or corrosive gas or 

liquid from the pipeline that may 

endanger life or cause serious bodily 

harm or damage to property or the 

environment, the excavator must 

immediately report the release of 

hazardous products to appropriate 

emergency response authorities by 

calling 911. Upon calling the 911 

emergency telephone number, the 

excavator may exercise discretion as to 

whether to request emergency response 

personnel be dispatched to the damage 

site. 

§ 196.111 What if a pipeline operator fails 

to respond to a locate request or fails to 

accurately locate and mark its pipeline? 

PHMSA may enforce existing 

requirements applicable to pipeline 

operators, including those specified in 

49 CFR 192.614 and 195.442 and 49 

U.S.C. 60114 if a pipeline operator fails 

to respond to a locate request or fails to 

accurately locate and mark its pipeline. 

The limitation in § 60114(f) does not 

apply to enforcement taken against 

pipeline operators and excavators 

working for pipeline operators. 

Subpart C—Enforcement 

§ 196.201 What is the purpose and scope 

of this subpart? 

This subpart describes the 

enforcement authority and sanctions 

exercised by the Associate 

Administrator, OPS for achieving and 

maintaining pipeline safety under this 

Part. It also prescribes the procedures 

governing the exercise of that authority 

and the imposition of those sanctions. 

§ 196.203 What is the administrative 

process PHMSA will use to conduct 

enforcement proceedings for alleged 

violations of excavation damage prevention 

requirements? 

PHMSA will use the existing 

adjudication process for alleged 

pipeline safety violations set forth in 49 

CFR Part 190, Subpart B. This process 

provides for notification that a probable 

violation has been committed, a 30-day 

period to respond including the 

opportunity to request an administrative 

hearing, the issuance of a final order, 

and the opportunity to petition for 

reconsideration. 

§ 196.205 Can PHMSA assess 

administrative civil penalties for violations? 

Yes. When the Associate 

Administrator, OPS has reason to 

believe that a person has violated any 

provision of the 49 U.S.C. 60101 et seq. 

or any regulation or order issued 

thereunder, including a violation of 

excavation damage prevention 

requirements under this Part and 49 

U.S.C. 60114(d) in a state with an 

excavation damage prevention law 

enforcement program PHMSA has 

deemed inadequate under 49 CFR Part 

198, Subpart D, PHMSA may conduct a 

proceeding to determine the nature and 

extent of the violation and to assess a 

civil penalty. 

§ 196.207 What are the maximum 

administrative civil penalties for violations? 

The maximum administrative civil 

penalties that may be imposed are 

specified in 49 U.S.C. § 60122. 

§ 196.209 May other civil enforcement 

actions be taken? 

Whenever the Associate 

Administrator, OPS has reason to 

believe that a person has engaged, is 

engaged, or is about to engage in any act 

or practice constituting a violation of 

any provision of 49 U.S.C. 60101 et seq., 

or any regulations issued thereunder, 

PHMSA, or the person to whom the 

authority has been delegated, may 

request the Attorney General to bring an 

action in the appropriate U.S. District 

Court for such relief as is necessary or 

appropriate, including mandatory or 

prohibitive injunctive relief, interim 

equitable relief, civil penalties, and 

punitive damages as provided under 49 

U.S.C. 60120. 

§ 196.211 May criminal penalties be 

imposed for violations? 

Yes. Criminal penalties may be 

imposed as specified in 49 U.S.C. 

60123. 

PART 198—REGULATIONS FOR 

GRANTS TO AID STATE PIPELINE 

SAFETY PROGRAMS 

2. The authority citation for part 198 

is amended to read as follows: 

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

U.S.C. 6101 et seq.; 49 CFR 1.53. 

3. 49 CFR Part 198 is amended by 

adding a new Subpart D to read as 

follows: 

Subpart D—State Damage Prevention 

Enforcement Programs 

Sec. 

198.51 What is the purpose and scope of 

this subpart? 

198.53 When and how will PHMSA 

evaluate state damage prevention 

enforcement programs? 

198.55 What criteria will PHMSA use in 

evaluating the effectiveness of state 

damage prevention enforcement 

programs? 

198.57 What is the process PHMSA will use 

to notify a state that its damage 

prevention enforcement program appears 

to be inadequate? 

198.59 How may a state respond to a notice 

of inadequacy? 

198.61 How is a state notified of PHMSA’s 

final decision? 

198.63 How may a state with an inadequate 

damage prevention law enforcement 

program seek reconsideration by 

PHMSA? 


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19834 Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 

Subpart D— State Damage Prevention 

Enforcement Programs 

§ 198.51 What is the purpose and scope of 

this subpart? 

This subpart establishes standards for 

effective state damage prevention 

enforcement programs and prescribes 

the administrative procedures available 

to a state that elects to contest a notice 

of inadequacy. 

§ 198.53 When and how will PHMSA 

evaluate state excavation damage 

prevention law enforcement programs? 

PHMSA conducts annual program 

evaluations and certification reviews of 

state pipeline safety programs. PHMSA 

will also conduct annual reviews of 

state excavation damage prevention law 

enforcement programs. PHMSA will use 

the criteria described in § 198.55 as the 

basis for the reviews, utilizing 

information obtained from any state 

agency or office with a role in the state’s 

excavation damage prevention law 

enforcement program. If PHMSA finds a 

state’s enforcement program inadequate, 

PHMSA may take immediate 

enforcement against excavators in that 

state. The state will have five years from 

the date of the finding to make program 

improvements that meet PHMSA’s 

criteria for minimum adequacy. A state 

that fails to establish an adequate 

enforcement program in accordance 

with 49 CFR 198.55 within five years of 

the finding of inadequacy may be 

subject to reduced grant funding 

established under 49 U.S.C. 60107. The 

amount of the reduction will be 

determined using the same process 

PHMSA currently uses to distribute the 

grant funding; PHMSA will factor the 

findings from the annual review of the 

excavation damage prevention 

enforcement program into the 49 U.S.C. 

60107 grant funding distribution to state 

pipeline safety programs. The amount of 

the reduction in 49 U.S.C. 60107 grant 

funding shall not exceed 10% of prior 

year funding. If a state fails to 

implement an adequate enforcement 

program within five years of a finding 

of inadequacy, the Governor of that state 

may petition the Administrator of 

PHMSA, in writing, for a temporary 

waiver of the penalty, provided the 

petition includes a clear plan of action 

and timeline for achieving program 

adequacy. 

§ 198.55 What criteria will PHMSA use in 

evaluating the effectiveness of state 

damage prevention enforcement programs? 

(a) PHMSA will use the following 

criteria to evaluate the effectiveness of 

a state excavation damage prevention 

enforcement program: 

(1) Does the state have the authority 

to enforce its state excavation damage 

prevention law through civil penalties? 

(2) Has the state designated a state 

agency or other body as the authority 

responsible for enforcement of the state 

excavation damage prevention law? 

(3) Is the state assessing civil penalties 

for violations at levels sufficient to 

ensure compliance and is the state 

making publicly available information 

that demonstrates the effectiveness of 

the state’s enforcement program? 

(4) Does the enforcement authority (if 

one exists) have a reliable mechanism 

(e.g., mandatory reporting, complaintdriven reporting, etc.) for learning about 

excavation damage to underground 

facilities? 

(5) Does the state employ excavation 

damage investigation practices that are 

adequate to determine the at-fault party 

when excavation damage to 

underground facilities occurs? 

(6) At a minimum, does the state’s 

excavation damage prevention law 

require the following: 

a. Excavators may not engage in 

excavation activity without first using 

an available one-call notification system 

to establish the location of underground 

facilities in the excavation area. 

b. Excavators may not engage in 

excavation activity in disregard of the 

marked location of a pipeline facility as 

established by a pipeline operator. 

c. An excavator who causes damage to 

a pipeline facility: 

i. Must report the damage to the 

owner or operator of the facility at the 

earliest practical moment following 

discovery of the damage; and 

ii. If the damage results in the escape 

of any flammable, toxic, or corrosive gas 

or liquid that may endanger life or cause 

serious bodily harm or damage to 

property, must promptly report to other 

appropriate authorities by calling the 

911 emergency telephone number or 

another emergency telephone number. 

(7) Does the state limit exemptions for 

excavators from its excavation damage 

prevention law? A state must provide to 

PHMSA a written justification for any 

exemptions for excavators from state 

damage prevention requirements. 

PHMSA will make the written 

justifications available to the public. 

(b) PHMSA may also consider 

individual enforcement actions taken by 

a state in evaluating the effectiveness of 

a state’s damage prevention enforcement 

program. 

§ 198.57 What is the process PHMSA will 

use to notify a state that its damage 

prevention enforcement program appears 

to be inadequate? 

PHMSA will issue a notice of 

inadequacy to the state in accordance 

with 49 CFR § 190.5. The notice will 

state the basis for PHMSA’s 

determination that the state’s damage 

prevention enforcement program 

appears inadequate for purposes of this 

subpart and set forth the state’s response 

options. 

§ 198.59 How may a state respond to a 

notice of inadequacy? 

A state receiving a notice of 

inadequacy will have 30 days from 

receipt of the notice to submit a written 

response to the PHMSA official that 

issued the notice. In its response, the 

state may include information and 

explanations concerning the alleged 

inadequacy or contest the allegation of 

inadequacy and request the notice be 

withdrawn. 

§ 198.61 How is a state notified of 

PHMSA’s final decision? 

PHMSA will issue a final decision on 

whether the state’s damage prevention 

enforcement program has been found 

inadequate in accordance with 49 CFR 

190.5. 

§ 198.63 How may a state with an 

inadequate excavation damage prevention 

law enforcement program seek 

reconsideration by PHMSA? 

At any time following a finding of 

inadequacy, the state may petition 

PHMSA to reconsider such finding 

based on changed circumstances 

including improvements in the state’s 

enforcement program. Upon receiving a 

petition, PHMSA will reconsider its 

finding of inadequacy promptly and 

will notify the state of its decision on 

reconsideration promptly but no later 

than the time of the next annual 

certification review. 

Issued in Washington, DC on March 26, 

2012. 

Jeffrey D. Wiese, 

Associate Administrator for Pipeline Safety. 

[FR Doc. 2012–7550 Filed 3–30–12; 8:45 am] 

BILLING CODE 4910–60–P 


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