[Federal Register: October 29, 2009 (Volume 74, Number 208)]
[Proposed Rules]
[Page 55797-55803]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc09-32]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 190, 192, 195, and 198
[Docket No. PHMSA-2009-0192]
RIN 2137-AE43
Pipeline Safety: Pipeline Damage Prevention Programs
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
U.S. Department of Transportation (DOT).
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: This Advance Notice of Proposed Rulemaking (ANPRM) initiates a
rulemaking procedure to establish criteria for determining adequate
state enforcement of pipeline damage prevention laws. Under the
Pipeline Inspection, Protection, Safety, and Enforcement (PIPES) Act of
2006,
[[Page 55798]]
establishment of these criteria is a prerequisite should PHMSA find it
necessary to conduct an enforcement proceeding against an excavator for
violation of one-call damage prevention laws in the absence of
enforcement action by the state where the events occurred. This notice
is issued to solicit feedback and comments regarding the criteria and
procedures PHMSA should use to determine if a state's enforcement of
its damage prevention laws is adequate. These procedures will encourage
states to develop effective excavation damage prevention enforcement
programs to protect gas and hazardous liquid pipelines, but also allow
federal enforcement authority should any state fail to do so.
DATES: Persons interested in submitting written comments on this ANPRM
must do so by December 14, 2009. PHMSA will consider late filed
comments so far as practicable.
ADDRESSES: Comments should reference Docket No. PHMSA-2009-0192 and may
be submitted in the following ways:
E-Gov Web Site: http://www.regulations.gov. This site
allows the public to enter comments on any Federal Register notice
issued by any agency.
Fax: 1-202-493-2251.
Mail: DOT Docket Operations Facility (M-30), U.S.
Department of Transportation, West Building, 1200 New Jersey Avenue,
SE., Washington, DC 20590.
Hand Delivery: DOT Docket Operations Facility, U.S.
Department of Transportation, West Building, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m.,
Monday through Friday, except federal holidays.
Instructions: Identify the docket number, PHMSA-2009-0192, at the
beginning of your comments. If you mail your comments, we request that
you send two copies. To receive confirmation that PHMSA received your
comments, include a self-addressed stamped postcard. Note: All comments
are electronically posted without changes or edits, including any
personal information provided.
Privacy Act Statement
Anyone can search the electronic form of comments received in
response to any of our dockets by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement was published in the Federal Register on April 11, 2000 (65
FR 19477).
FOR FURTHER INFORMATION CONTACT: Steve Fischer, Director of Program
Development, PHMSA by e-mail at steve.fischer@dot.gov; or Larry White,
Attorney-Advisor, PHMSA by e-mail at lawrence.white@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Objective
Excavation damage is a leading cause of pipeline failure incidents.
Better, more effective enforcement of state damage prevention laws is
seen as a key to making further reductions in pipeline damage
incidents.
PHMSA is seeking to encourage states to strengthen their excavation
damage prevention laws and to adequately enforce those laws. Toward
this goal and in response to language included in the Pipeline
Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006
(Pub. L. 109-468), PHMSA intends to issue criteria and procedures,
through a rulemaking proceeding, for determining whether states are
adequately enforcing their damage prevention laws, and for conducting
federal enforcements if necessary. This ANPRM seeks feedback and
comments regarding the development of those criteria and procedures.
II. Background
A. PHMSA Damage Prevention Efforts
PHMSA has made extensive efforts over many years to improve
excavation damage prevention as it pertains to pipeline safety. These
have included outreach to and cooperative efforts with a wide spectrum
of damage prevention stakeholders, including:
Public and community organizations
Excavators and property developers
Emergency responders
Local, state and federal government agencies
Pipeline and other underground facility operators
Industry trade associations
Consensus standards organizations
Environmental organizations
Current PHMSA programs and recent initiatives sponsored and/or
supported by PHMSA designed to enhance pipeline safety through
improvements in excavation damage prevention include:
State Pipeline Safety Partners--Supported by funding
agreements with PHMSA, state agencies can assume safety jurisdiction
for intrastate and/or interstate gas and hazardous liquid pipeline
operators. To assume jurisdiction, states must publish regulations that
meet or exceed the federal safety regulations. Our state pipeline
safety partners are represented by the National Association of Pipeline
Safety Representatives (NAPSR), which strives to strengthen state
pipeline safety programs through promotion of improved pipeline safety
standards, education, training, and technology. PHMSA frequently
consults with NAPSR, especially for issues concerning intrastate
pipelines.
Grants to States and Communities--Each state has
established laws, regulations, and procedures shaping the state damage
prevention program. PHMSA provides grant opportunities intended to help
states improve their damage prevention programs to protect pipelines.
States seeking damage prevention program grants must incorporate the
nine elements of effective damage prevention programs identified in the
PIPES Act of 2006 into their programs. PHMSA also offers Technical
Assistance Grants (TAG) to communities. Informed communities play a
vital role in the safety and reliability of pipeline operations.
PHMSA's TAG program offers new opportunities to strengthen the depth
and quality of public participation in pipeline safety and damage
prevention matters.
Consensus Standards--Office of Pipeline Safety (OPS) works
closely with several national consensus standards organizations, such
as the American Society of Mechanical Engineers (ASME), the American
Petroleum Institute (API) and the National Association of Corrosion
Engineers (NACE). These organizations include members from various
stakeholder groups and produce effective standards balanced through a
consensus process. PHMSA recognizes the value of stakeholder consensus
and appreciates the hard work required to develop and publish consensus
technical safety standards. When these standards complement or enhance
federal pipeline safety regulations, they may be incorporated into the
regulations by reference. One example of an incorporated consensus
standard intended to help improve pipeline damage prevention is
American Petroleum Institute (API) Recommended Practice (RP) 1162,
Public Awareness Programs for Pipeline Operators.
Research and Development (R&D)--PHMSA technical review
committees identify R&D priorities and select projects for funding.
PHMSA's R&D program goal is to drive improvements in various aspects of
pipeline safety, including damage prevention. The program focuses on
the rapid conversion of new technology into tools pipeline stakeholders
can use to improve pipeline safety. Completed
[[Page 55799]]
R&D projects often provide the technical basis for regulations and
consensus safety standards. Other R&D projects summarize information
necessary for well-informed decisions by pipeline safety stakeholders.
Public Awareness Programs--Pipeline safety regulations
address all aspects of public awareness communications. Pipeline
operators are required to implement public awareness programs in
communities traversed by their pipelines. They must inform
stakeholders, including the public, excavators, emergency responders,
and local officials, on how to recognize pipeline failures and of what
actions to take in such an event. Operators must develop plans for
carrying out their public awareness activities and must evaluate the
effectiveness of their programs to identify needed improvements. These
requirements are reflected in PHMSA's adoption of API RP 1162 into the
pipeline safety regulations, as noted above.
Focused Damage Prevention Initiatives--PHMSA invests
considerable resources in identifying damage prevention best practices
and in raising stakeholder awareness regarding pipeline damage
prevention. PHMSA's Stakeholder Communications Web site (http://
primis.phmsa.dot.gov/comm) provides additional information on these and
other recent PHMSA damage prevention initiatives, including:
[cir] Damage Prevention Best Practices--In 1999, PHMSA sponsored
the landmark Common Ground Study to identify ``best practices'' to
prevent damage to pipelines and other underground facilities. The
nonprofit Common Ground Alliance (CGA) now provides stewardship to
ensure the Damage Prevention Best Practices are maintained, updated,
and promoted for implementation. The CGA Best Practices are recognized
nationally and internationally.
[cir] Common Ground Alliance--The CGA promotes damage prevention
across all underground facility damage prevention stakeholder groups.
Its individual members and member/sponsor organizations represent the
diverse spectrum of these stakeholders. PHMSA supported the formation
and incorporation of the CGA and continues to support its efforts
toward pipeline damage prevention through grants and cooperative
agreements.
[cir] 811--PHMSA supported and championed the national 3-digit
dialing number to provide a standard and easily remembered number for
excavators to call to access the local one-call damage prevention
center.
[cir] Community Assistance and Technical Services (CATS) Managers--
PHMSA established the CATS program and deploys CATS personnel in each
of its five regions. CATS Managers provide community assistance and
technical services to all stakeholders. The main focus of the CATS
program is to foster effective communications regarding pipeline safety
among PHMSA and other stakeholders, and assist permitting agencies
issuing permits required for safety-related pipeline repairs and
construction projects.
[cir] VA Pilot Project--PHMSA sponsors and supports the Virginia
Pilot Project for Incorporating Global Positioning System (GPS)
Technology to Enhance One-Call Damage Prevention. The report for Phase
I of the VA Pilot Project is available from PHMSA's Stakeholder
Communications Web site.
[cir] Pipelines and Informed Planning Alliance (PIPA)--PIPA was
initiated by and is supported by PHMSA. It is driven by requirements in
the Pipeline Safety Improvement Act of 2002 (PSIA) and recommendations
in the Transportation Research Board (TRB) Special Report 281. The PIPA
initiative aims to improve damage prevention and pipeline safety by
enhancing communication between pipeline operators and property owners/
developers, and to ensure that decisions about land use and development
near transmission pipelines are risk-informed.
[cir] Damage Prevention Assistance Program (DPAP)--PHMSA has
developed guidance, ``Strengthening State Damage Prevention Programs,''
to assist stakeholders. The guidance draws on the definition of
effective damage prevention programs found in the PIPES Act of 2006. It
examines the nine elements specified in the PIPES Act and makes
suggestions for implementing them at the state level. State programs
can be improved by incorporating the nine elements and by identifying
and implementing positive changes in processes, procedures,
technologies and damage prevention laws.
These efforts are producing benefits. Data from PHMSA Significant
Incident Files dated July 14, 2009, indicates that serious pipeline
incidents caused by excavation damage have begun to trend downward.
However, despite these efforts and the efforts of the states, pipeline
operators, and other stakeholders, excavation damage to gas and
hazardous liquid pipelines continues to be the single leading cause of
pipeline incidents. Based on data provided to PHMSA,\1\ during a recent
10-year period, from 1998-2008, excavation damage alone was cited as
the cause in almost 26 percent of significant incidents for all
pipeline systems. Better, more effective enforcement of state damage
prevention laws is seen as a key to making further reductions in
pipeline damage incidents.
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\1\ PHMSA Significant Incidents Files, April 15, 2009.
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While excavation damage is the cause in a significant portion of
all pipeline failure incidents, it is cited as the cause in a
relatively higher portion of natural gas distribution incidents. To
look at this issue, PHMSA initiated and sponsored in 2005 an
investigation of the risks and threats to gas distribution systems.
This investigation was conducted through the efforts of four joint
work/study groups, each of which included representatives of the
stakeholder public, the gas distribution pipeline industry, state
pipeline safety representatives, and PHMSA. The areas of their
investigations included excavation damage prevention. The Distribution
Integrity Management for Gas Distribution, Report of Phase I
Investigations (DIMP Report) was issued in December 2005. As noted in
the DIMP Report, the Excavation Damage Prevention work/study group
reached four key conclusions.
Excavation damage poses by far the single greatest threat
to distribution system safety, reliability and integrity; therefore,
excavation damage prevention presents the most significant opportunity
for distribution pipeline safety improvements.
States with comprehensive damage prevention programs that
include effective enforcement have a substantially lower probability of
excavation damage to pipeline facilities than states that do not. The
lower probability of excavation damage translates to a substantially
lower risk of serious incidents and consequences resulting from
excavation damage to pipelines.
A comprehensive damage prevention program requires nine
important elements be present and functional for the program to be
effective. All stakeholders must participate in the excavation damage
prevention process. The elements are:
1. Enhanced communication between operators and excavators.
2. Fostering support and partnership of all stakeholders in all
phases (enforcement, system improvement, etc.) of the program.
[[Page 55800]]
3. Operator's use of performance measures for persons performing
locating of pipelines and pipeline construction.
4. Partnership in employee training.
5. Partnership in public education.
6. Enforcement agencies' role as partner and facilitator to help
resolve issues.
7. Fair and consistent enforcement of the law.
8. Use of technology to improve all parts of the process.
9. Analysis of data to continually evaluate/improve program
effectiveness.
Federal legislation is needed to support the development
and implementation of damage prevention programs that include effective
enforcement as a part of the state's pipeline safety program. This is
consistent with the objectives of the state pipeline safety programs,
which are to ensure the safety of the public by addressing threats to
the distribution infrastructure. The legislation will not be effective
unless it includes provisions for ongoing funding such as federal
grants to support these efforts. This funding is intended to be in
addition to, and independent of, existing federal funding of state
pipeline safety programs.
Another recent report prepared on behalf of PHMSA \2\ concluded
that excavation damage continues to be a leading cause of serious
pipeline failures and that better one-call enforcement is a key gap in
damage prevention. In that regard, the Mechanical Damage Report noted
that most jurisdictions have established laws to enforce one-call
notification compliance; however, it noted that many pipeline operators
consider lack of enforcement to be degrading the effectiveness of one-
call programs. The report also noted that administrative enforcement
measures managed through government departments are relatively easy to
implement and have proven to be effective. It cited that in
Massachusetts, 3,000 violation notices were issued from 1986 to the
mid-1990s, contributing to a decrease of third-party damage incidents
on all types of facilities from 1,138 in 1986 to 421 in 1993. The
report also cited findings from another study that enforcement of the
one-call notification requirement was the most influential factor in
reducing the probability of pipeline strikes and that the number of
pipeline strikes is proportionate to the degree of enforcement.
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\2\ Mechanical Damage Final Report, Michael Baker Jr., Inc.,
April 2009.
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With respect to the effectiveness of current regulations, the
Mechanical Damage Report stated that an estimated two-thirds of
pipeline excavation damage is caused by third parties and found that
the problem is compounded if the pipeline damage is not promptly
reported to the pipeline operator so that corrective action can be
taken. It also noted ``when the oil pipeline industry developed the
survey for its voluntary spill reporting system--known as the Pipeline
Performance Tracking System (PPTS)--it also recognized that damage to
pipelines, including that resulting from excavation, digging, and other
impacts, is also precipitated by operators (``first parties'') and
their contractors (``second parties'')''.
Finally, the report found that for some pipeline excavation damage
data that was evaluated, ``in more than 50 percent of the incidents,
one-call associations were not contacted first'' and that ``failure to
take responsible care, to respect the instructions of the pipeline
personnel, and to wait the proper time accounted for another 50 percent
of the incidents.''
B. The Pipeline Inspection, Protection, Enforcement, and Safety Act of
2006
On December 29, 2006, the Pipeline and Hazardous Materials Safety
Administration's pipeline safety program was reauthorized for an
additional four years, through 2010, by enactment of the Pipeline
Inspection, Protection, Enforcement, and Safety Act of 2006 (Pub. L.
109-468). The PIPES Act of 2006 provides for enhanced safety and
environmental protection in pipeline transportation, enhanced
reliability in the transportation of the Nation's energy products by
pipeline, and other purposes. Major portions of the PIPES Act were
focused on damage prevention including additional resources and clear
program guidelines as well as additional enforcement authorities to
assist states in developing effective excavation damage prevention
programs.
With respect to resources, the PIPES Act of 2006 provides
incentives through funding grants for states to improve the overall
quality and effectiveness of their damage prevention programs. It
provides an increased funding level up to 80% for state agencies that
submit an annual certification and participate in the pipeline and/or
hazardous liquid safety programs. As noted in 49 U.S.C. 60105(b), each
certification submitted must state that the state authority ``(4) is
encouraging and promoting the establishment of a program designed to
prevent damage by demolition, excavation, tunneling, or construction
activity to the pipeline facilities to which the certification applies
that subjects persons who violate the applicable requirements of that
program to civil penalties and other enforcement actions that are
substantially the same as are provided under this chapter.* * *''
PHMSA's damage prevention grants will facilitate the establishment
of comprehensive damage prevention programs in states that do not have
such programs and will help improve damage prevention programs in
states that do. PHMSA posted a Grants.gov opportunity in November 2007,
with a $100,000 maximum grant per state and $1.5 million in total grant
funding available. During 2008-2009, PHMSA awarded 27 grants to state
agencies or one-call centers under state authority for improvements in
their state damage prevention programs. The grant awards covered a wide
scope of projects. Examples include: A study on the scope and
effectiveness of the underground utility damage prevention system
within the state; the design and implementation of a computer-based
system that tracks, measures, analyzes and reports the overall
effectiveness of damage prevention training programs; staff training;
development of software and world wide web applications; development of
a state-of-the-art plastic pipe locating device; and additional staff
positions and equipment purchases to enhance enforcement of the state
damage prevention laws and regulations. Summaries of these projects are
available at http://primis.phmsa.dot.gov/comm/
DamagePreventionGrantsToStates.htm.
With respect to program guidelines and authorities, the PIPES Act
of 2006 identifies nine elements that effective damage prevention
programs will include. These are, essentially, identical to those nine
elements noted in the DIMP Report discussed in the previous subsection.
Of particular note, relevant to this ANPRM, is Element 7, which
identifies effective enforcement of state damage prevention laws and
regulations, including the use of civil penalties for violations, as a
key part of an effective state program. The PIPES Act also provided
PHMSA with limited authority to conduct civil enforcement proceedings
against excavators who damage pipelines in a state that has failed to
adequately enforce its damage prevention laws. Specifically, Section 2
of the PIPES Act established 49 U.S.C. 60114 to provide that the
Secretary of Transportation may take civil enforcement action against
excavators who (1) fail to use a one-call system
[[Page 55801]]
before excavating, or (2) who fail to regard the location information
or markings established by a pipeline facility operator, and (3) who
cause damage to a pipeline facility that may endanger life or cause
serious bodily harm or damage to property and fail to promptly report
the damage and fail to call 911 if the damage results in a release of
pipeline products. The PIPES Act limited the Secretary's ability to
take civil enforcement action against these excavators, in that the
Secretary may not conduct an enforcement proceeding for a violation
within the boundaries of a state that has the authority to impose
penalties described in 49 U.S.C. 60134(b)(7) against persons who
violate that state's damage prevention laws, unless the Secretary has
determined that the state's enforcement is inadequate to protect
safety, consistent with this chapter, and until the Secretary issues,
through a rulemaking proceeding, the procedures for determining
inadequate state enforcement of penalties. This ANPRM initiates that
rulemaking procedure. Following is citation of these additions from the
PIPES Act.
SEC. 2. PIPELINE SAFETY AND DAMAGE PREVENTION.
(a) ONE CALL CIVIL ENFORCEMENT.--
(1) PROHIBITIONS.--Section 60114 is amended by adding at the end
the following:
(d) PROHIBITION APPLICABLE TO EXCAVATORS.--A person who engages
in demolition, excavation, tunneling, or construction--
(1) May not engage in a demolition, excavation, tunneling, or
construction activity in a state that has adopted a one-call
notification system without first using that system to establish the
location of underground facilities in the demolition, excavation,
tunneling, or construction area;
(2) May not engage in such demolition, excavation, tunneling, or
construction activity in disregard of location information or
markings established by a pipeline facility operator pursuant to
subsection (b); and
(3) Who causes damage to a pipeline facility that may endanger
life or cause serious bodily harm or damage to property--
(A) May not fail to promptly report the damage to the owner or
operator of the facility; and
(B) If the damage results in the escape of any flammable, toxic,
or corrosive gas or liquid, may not fail to promptly report to other
appropriate authorities by calling the 911 emergency telephone
number.
(e) PROHIBITION APPLICABLE TO UNDERGROUND PIPELINE FACILITY
OWNERS AND OPERATORS.--Any owner or operator of a pipeline facility
who fails to respond to a location request in order to prevent
damage to the pipeline facility or who fails to take reasonable
steps, in response to such a request, to ensure accurate marking of
the location of the pipeline facility in order to prevent damage to
the pipeline facility shall be subject to a civil action under
section 60120 or assessment of a civil penalty under section 60122.
(f) LIMITATION.--The Secretary may not conduct an enforcement
proceeding under subsection (d) for a violation within the
boundaries of a state that has the authority to impose penalties
described in section 60134(b)(7) against persons who violate that
state's damage prevention laws, unless the Secretary has determined
that the state's enforcement is inadequate to protect safety,
consistent with this chapter, and until the Secretary issues,
through a rulemaking proceeding, the procedures for determining
inadequate state enforcement of penalties.
III. Purpose and Scope of the ANPRM
PHMSA is a strong supporter of expanded state damage prevention
enforcement to protect pipelines. PHMSA strongly believes that
individual states should retain the primary responsibility to
effectively enforce damage prevention laws. PHMSA's goal is to minimize
the need to take federal enforcement action against excavators that
damage pipelines by encouraging states to strengthen their damage
prevention laws to include the authority to impose penalties against
persons who violate those laws and to adequately enforce those laws
through the use of civil penalties. However, PHMSA must follow
Congressional direction and assume that responsibility if it is
determined that a state is not doing so adequately. In order to do so,
PHMSA must have procedures in place to evaluate state programs to make
such determinations. These procedures will enable PHMSA to conduct
civil enforcement proceedings against excavators who damage pipelines,
in accordance with the limitations prescribed in 49 U.S.C. 60114(f), as
noted above. The procedures to be used to determine if a state is
adequately enforcing its one-call damage prevention laws will
necessarily include a means of allowing a state the opportunity to
contest a determination that it is not adequately enforcing its damage
prevention laws and will provide an adjudication process to be used if
PHMSA determines that an excavator is to be subject to federal
enforcement as the result of a violation of the damage prevention
requirements cited in 49 U.S.C. 60114. These procedures will enhance
pipeline safety and will encourage states to develop effective damage
prevention programs.
The purpose of this ANPRM is to enable PHMSA to begin the process
of rulemaking to establish procedures for determining the adequacy of
state enforcement of damage prevention requirements and to articulate a
proposed process for federal enforcement. To that purpose, PHMSA is
soliciting feedback and comments regarding: (1) The criteria for
determining the adequacy of a state's enforcement program; (2) the
procedures PHMSA will use to make this determination; (3) the federal
standards to be enforced against an excavator in the event PHMSA
determines a state to have inadequate enforcement; and (4) the
administrative process for imposing fines or penalties on an excavator
alleged to have violated the applicable standards.
IV. Issues on Which PHMSA Seeks Comment
Pipeline operators, excavators, states and the public are urged to
carefully consider the appropriate procedures for determining the
adequacy of state damage prevention enforcement programs, as well as
the need for federal enforcement in the absence of an adequate state
program. Commenters should be aware that the information and data
generated in response to this ANPRM could result in a notice of
proposed rulemaking. We invite commenters to submit data and
information on the following:
A. Considerations for Determining the Adequacy of State Damage
Prevention Enforcement Programs
A threshold criterion for determining the adequacy of a state's
damage prevention enforcement program will be whether the state has
established and excercised its authority to assess civil penalties for
violations of its one-call laws. PHMSA will likely consider the
following issues in further evaluating the enforcement component of
state damage prevention programs:
Current federal pipeline safety regulations, 49 CFR
192.614 and 49 CFR 195.442, require that gas and hazardous liquid
pipeline operators, respectively, comply with certain damage prevention
requirements through participation in a qualified one-call system.
Specifically, this involves the receipt and recordation of
notifications from excavators of planned excavation activities and
performing their locating and marking responsibilities. Does state law
contain similar requirements for operators to be members of and
participate in the state's one-call system?
Does state law require all excavators to use the state's
one-call system and request that underground utilities in the area of
the planned excavation be located and marked prior to digging?
Has the state avoided giving exemptions to its one-call
damage prevention laws to state agencies,
[[Page 55802]]
municipalities, agricultural entities, railroads, and other groups of
excavators?
Are the state's requirements detailed and specific enough
to allow excavators to understand their responsibilities before and
during excavating in the vicinity of a pipeline?
Are excavators required to report all pipeline damage
incidents to the affected pipeline operators?
Does state law contain a provision requiring that 911 be
called if a pipeline damage incident causes a release of hazardous
products?
Has the responsible state agency established a reliable
mechanism to ensure that it receives reports of pipeline damage
incidents on a timely basis? Damage reports should include
documentation of the consequences of any product release, including the
extent of service interruptions, product loss, property damage,
evacuations, injuries, fatalities, and environmental damage, and copies
of the reports should be made available to the appropriate PHMSA
Regional Office.
Does the responsible state agency conduct investigations
of all excavation damage to pipeline incidents to determine whether the
excavator appropriately used the one-call system to request a facility
locate, whether a dig ticket was generated, how quickly the pipeline
operator responded, whether the pipeline operator followed all of its
applicable written procedures, whether the excavator waited the
appropriate time for the facilities to be located and marked, whether
the pipeline operator's markings were accurate, and whether the digging
was conducted in a responsible manner?
Does the state's damage prevention law provide enforcement
authority including the use of civil penalties, and are the maximum
penalties similar to the federal maximums (see 49 U.S.C. 60122(a))?
Has the state designated a state agency with
responsibility for administering the damage prevention laws?
Does the state official responsible for determining
whether or not to proceed with enforcement action document the reasons
for the decision in a transparent and accountable manner? Are the
records of these investigations and enforcement decisions made
available to PHMSA?
With respect to cases where enforcement action is taken,
is the state actually exercising its civil penalty authority? Does the
amount of the civil penalties assessed reflect the seriousness of the
incident? Are remedial orders given to the violator legally
enforceable?
Are annual statistics on the number of excavation damage
incidents, investigations, enforcement actions, penalties proposed, and
penalties collected by the state made available to PHMSA and the
public?
Commenters are invited to provide comment on these considerations
and may also offer additions and alternatives that may be equally
suitable for the purpose of evaluating the adequacy of state damage
prevention enforcement programs.
B. Administrative Process
PHMSA seeks comment on the administrative procedures available to a
state that elects to contest a notice of inadequacy should it receive
one. The procedures would likely involve a ``paper hearing'' process
where PHMSA would notify a state that it considers its damage
prevention enforcement inadequate (i.e., following its annual review),
and the state would then have an opportunity to submit written
materials and explanations. PHMSA would then make a final written
determination including the reasons for the decision. The
administrative procedures would also likely provide for an opportunity
for the state to petition for reconsideration of the decision. If the
state's enforcement program is ultimately deemed inadequate, direct
federal enforcement against an excavator who violated the state's
damage prevention law and damaged a pipeline in that state could
proceed. The procedures would also likely give states the right to make
a showing at a later time that it has improved its damage prevention
enforcement program to an adequate level and request that PHMSA
discontinue federal enforcement in that state.
Commenters are invited to submit their views on this process or
suggest alternatives. In particular, does this process strike the right
balance between the Congressional directive to PHMSA to undertake
federal enforcement where necessary while providing a state with a fair
and efficient means of showing that the state's enforcement program is
adequate? PHMSA will likely evaluate state damage prevention
enforcement programs on an annual basis, considering factors such as
those set forth in paragraph A above. This annual review will likely
include a review of all of the enforcement actions taken by the state
over the previous year. For states that have been deemed to have
inadequate programs in their most recent annual reviews and in
accordance with the process outlined in paragraph B, PHMSA could
conduct federal enforcement without further process.
With respect to a state that has been deemed nominally adequate in
its most recent annual review, should the process also enable PHMSA to
evaluate a state enforcement decision concerning an individual incident
during the course of the year and potentially conduct federal
enforcement where a state decided not to undertake enforcement for an
incident that PHMSA believes may warrant enforcement action?
C. Federal Standard for Excavators
PHMSA also seeks comment on the establishment of the federal
standards for excavators that PHMSA would be enforcing in a state that
has been found to have an inadequate enforcement program. At a minimum
the standards will directly reflect the words in the U.S. Code cited
above and include requirements for an excavator to: Use an available
one-call system before digging, wait the required time, excavate with
proper regard for location information or markings established by the
pipeline operator, promptly report any damage to the pipeline operator,
and report any release of hazardous products to appropriate authorities
by calling 911.
Commenters are invited to submit their views on these standards or
to suggest alternatives. For example:
Should the federal standards for excavators be limited to
the minimum requirements reflected in the above-referenced statute or
should they be more detailed and extensive?
Will implementing the 911 requirement cause any unintended
consequences in practice?
Are there suggested alternatives to these standards?
The Common Ground Alliance Best Practices and API Recommended
Practice 1166, Excavation Monitoring and Observation (November 2005),
could be used to inform the development of such standards.
D. Adjudication Process
PHMSA also seeks comment from the excavator community on the
adjudication process that would be used if an excavator were cited by
PHMSA for failure to comply with the standards established as discussed
in section C above in a state in which the enforcement has been deemed
inadequate. At a minimum, an excavator that allegedly violated the
applicable requirement would have the right to: Receive written notice
of the allegations, including a description of the factual evidence the
allegations are based on;
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file a written response to the allegations; request an informal
hearing; be represented by counsel if he or she chooses; examine the
evidence; submit relevant information and call witnesses on his or her
behalf; and otherwise contest the allegations of violation. Hearings
would likely be held at one of PHMSA's five regional offices or via
teleconference. The hearing officer would be an attorney from the PHMSA
Office of Chief Counsel. The excavator would also likely have the
opportunity to petition for reconsideration of the agency's
administrative decision and judicial review of final agency action
would be available to the same extent it is available to a pipeline
operator.
Commenters are invited to submit their views on this process or
suggest alternatives. For example:
Is the process too formal in the sense that excavators
contesting a citation would have to prepare a written response for the
record and potentially appear before a hearing officer?
Is the process not formal enough in the sense that it does
not provide for formal rules of evidence, transcriptions, or discovery?
Or does this process strike the right balance by being efficient and at
the same time providing enough formality that excavators feel the
process is fair and their due process rights are maintained?
How should the civil penalty considerations found in 49
U.S.C. 60122(b) apply to excavators?
E. Existing Requirements Applicable to Owners and Operators of Pipeline
Facilities
Commenters are also invited to submit their feedback and comments
on the adequacy of PHMSA's existing requirements for pipeline operators
to participate in one-call organizations, respond to dig tickets, and
perform their locating and marking responsibilities. Under existing
pipeline safety regulations 49 CFR 192.614 for gas pipelines and 49 CFR
195.442 for hazardous liquid pipelines, operators are required to have
written damage prevention programs that require, in part, that the
operator provide for marking its pipelines in the area of an excavation
for which a locate request has been submitted by the excavator.
Comments could address, for example, whether PHMSA should consider
making the existing regulatory requirements more detailed and explicit
in terms of:
The amount of time for responding to locate requests,
The accuracy of facility locating and marking, or
Making operator personnel available to consult with
excavators following receipt of an excavation notification.
V. Regulatory Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
E.O. 12866 requires agencies to regulate in the ``most cost-
effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' We therefore
request comments, including specific data if possible, concerning the
costs and benefits of evaluating state damage prevention programs and
enforcing federal requirements.
B. Executive Order 13132: Federalism
Executive Order 13132 requires agencies to assure meaningful and
timely input by state and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Because evaluating the effectiveness of
state damage prevention enforcement programs necessarily involves
states, we invite state and local governments with an interest in this
rulemaking to comment on the effect that adoption of criteria for
effective damage prevention programs and enforcement requirements may
have on state pipeline safety programs.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), we must consider whether a proposed rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. If your business or organization is a small
entity and if adoption of specific requirements applicable to using
one-call systems could have a significant economic impact on your
operations, please submit a comment to explain how and to what extent
your business or organization could be affected.
D. National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) requires
federal agencies to consider the consequences of federal actions and
that they prepare a detailed statement analyzing if the action
significantly affects the quality of the human environment. Interested
parties are invited to address the potential environmental impacts of
this ANPRM. We are particularly interested in comments about compliance
measures that would provide greater benefit to the human environment or
on alternative actions the agency could take that would provide
beneficial impacts.
E. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. We invite Indian tribal governments to provide
comments on any aspect of this ANPRM that may affect Indian
communities.
F. Paperwork Reduction Act
Under 5 CFR Part 1320, PHMSA analyzes any paperwork burdens if any
information collection will be required by a rulemaking. We invite
comment on the need for any collection of information and paperwork
burdens, if any.
Authority: 49 U.S.C. 60101 et seq.; 49 CFR 1.53.
Issued in Washington, DC, on October 26, 2009.
Jeffrey D. Wiese,
Associate Administrator for Pipeline Safety.
[FR Doc. E9-26099 Filed 10-28-09; 8:45 am]
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