[Federal Register Volume 80, Number 141 (Thursday, July 23, 2015)]
[Rules and Regulations]
[Pages 43835-43869]
[FR Doc No: 2015-17259]

Vol. 80

Thursday,

No. 141

July 23, 2015

Part II

Department of Transportation

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 Pipeline and Hazardous Materials Safety Administration

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49 CFR Parts 196 and 198

 Pipeline Safety: Pipeline Damage Prevention Programs; Final Rule

Federal Register / Vol. 80 , No. 141 / Thursday, July 23, 2015 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 196 and 198

[Docket No. PHMSA-2009-0192; Amdt. No. 196-1; 198-7]
RIN 2137-AE43

Pipeline Safety: Pipeline Damage Prevention Programs

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

ACTION: Final rule.

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SUMMARY: Pursuant to the Pipeline Inspection, Protection, Enforcement,
and Safety (PIPES) Act of 2006, this final rule establishes review
criteria for State excavation damage prevention law enforcement
programs as a prerequisite for PHMSA to conduct an enforcement
proceeding against an excavator in the absence of an adequate
enforcement program in the State where a pipeline damage prevention
violation occurs. This final rule amends the pipeline safety
regulations to establish the following: Criteria and procedures for
determining the adequacy of State pipeline excavation damage prevention
law enforcement programs; an administrative process for making State
adequacy determinations; the Federal requirements PHMSA will enforce in
States with inadequate excavation damage prevention law enforcement
programs; and the adjudication process for administrative enforcement
proceedings against excavators where Federal authority is exercised.
The development of the review 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: This final rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT: Sam Hall, Program Manager, PHMSA, by
email at<EMAIL_ADDRESS>or by telephone at<PHONE_NUMBER>, or Larry
White, Attorney Advisor, PHMSA, by email at<EMAIL_ADDRESS>or
by telephone at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Regulatory Action

    The purpose of this final rule is to reduce pipeline accidents and
failures resulting from excavation damage by strengthening the
enforcement of pipeline damage prevention requirements. 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.\1\ Excavation damage means any excavation activity
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, appurtenances to the pipe,
protective coatings, support, cathodic protection or the housing for
the line device or facility. Better, more effective enforcement of
State excavation damage prevention laws, such as the requirement to
``call before you dig,'' is a key to reducing pipeline excavation
damage incidents. Though all States have a damage prevention program,
some States may not adequately enforce their State damage prevention
laws. Under section 2(a)(1) of the PIPES Act (Pub. L. 109-468), PHMSA
developed criteria and procedures for determining whether a State's
enforcement of its excavation damage prevention laws is adequate. Under
the PIPES Act, such a determination is a prerequisite for PHMSA if the
agency finds it necessary to conduct an administrative enforcement
proceeding against an excavator for violating Federal excavation
standards.
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    \1\ 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.
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B. Summary of the Major Provisions of the Regulatory Action

    Pursuant to the PIPES Act of 2006, this final rule amends the
Federal pipeline safety regulations to establish the following: (1)
Criteria and procedures PHMSA will use to determine the adequacy of
State pipeline excavation damage prevention law enforcement programs;
(2) an administrative process for States to contest notices of
inadequacy from PHMSA should they elect to do so; (3) the Federal
requirements PHMSA will enforce against excavators for violations in
States with inadequate excavation damage prevention law enforcement
programs; and (4) the adjudication process for administrative
enforcement proceedings against excavators where Federal authority is
exercised. The establishment of regulations specifying the criteria
that PHMSA will use to evaluate a State's excavation damage prevention
law enforcement program is a prerequisite for PHMSA to conduct an
enforcement proceeding against an excavator in the absence of an
adequate enforcement program in a State where a damage prevention
violation occurs.

C. Costs and Benefits

    The total first year costs of this rulemaking action is estimated
to be $658,145. The following years, the costs are estimated to be
approximately $183,145 per year. The total cost of this alternative
over 10 years, with a 3% discount rate is $2,084,132 and at a 7%
percent discount rate is $1,720,214. The average annual benefits of
this alternative range from $4,642,829 to $14,739,141. Evaluating just
the lower range of benefits over 10 years results in a total benefit of
over $38,000,000, with a 3% discount rate, and over $31,000,000, with a
7% discount rate. Therefore, the estimated benefits of this alternative
far outweigh the relatively minor costs, both annually and over ten
years.

II. Background

A. Pipeline Incidents Caused by Excavation Damage

    Excavation damage is a leading cause of natural gas and hazardous
liquid pipeline failure incidents. From 1988 to 2012, 188 fatalities,
723 injuries, 1,678 incidents, and $474,759,544 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.\2\
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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.
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    While excavation damage is the cause of a significant number of all
pipeline failure incidents, it is cited as the cause of a relatively
higher number of natural gas distribution incidents. In 2005, PHMSA
initiated and sponsored 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.\3\ As noted in the DIMP Report, the Excavation Damage
Prevention work/study group reached four key conclusions:
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    \3\ This report is available in the rulemaking docket.
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     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 improving distribution pipeline safety.
     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 to 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 action is needed to support the development and
implementation of damage prevention programs that includes effective
enforcement as a part of the State's pipeline safety program. This is
consistent with a State's pipeline safety program's objectives, which
are to ensure the safety of the public by addressing threats to the
distribution infrastructure. Federal action must include provisions for
ongoing funding, such as Federal grants, to support State pipeline
safety efforts. This funding is intended to be in addition to, and
independent of, existing Federal funding of State pipeline safety
programs.
    Other studies have indicated that improvements in State damage
prevention enforcement can contribute to lowering excavation damage
rates. A 2009 Mechanical Damage Final Report, prepared on behalf of
PHMSA, 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.\4\ In that regard, the 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.\5\
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    \4\ Mechanical Damage Final Report, Michael Baker Jr., Inc.,
April 2009.
    \5\ Effectiveness of Prevention Methods for Excavation Damage,
Chen, Q. and Chebaro, M., C FER Report L110, June 2006.
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    With respect to the effectiveness of current regulations, the
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--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.'' In addition,
``failure to take responsible care, to respect the instructions of the
pipeline personnel, and to wait the proper time accounted for 50
percent of the incidents.''

B. State Damage Prevention Programs

    States have historically been the primary enforcers of pipeline
damage prevention requirements, and while this final rule will allow
PHMSA to conduct Federal enforcement where necessary, PHMSA's view is
that States should remain the primary enforcers of these requirements
to the greatest extent possible. In analyzing the need for Federal
enforcement authority, PHMSA notes that 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; rural and agricultural States have different
underground infrastructure densities and excavation patterns than more
urbanized States.
    There is no single, comprehensive national damage prevention law
setting forth requirements for excavators. 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 tool to better understand the variability
in these State laws at http://primis.phmsa.dot.gov/comm/DamagePreventionSummary.htm.

C. PHMSA Damage Prevention Efforts

    Prior to developing this final rule, 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 Advance Notice of
Proposed Rulemaking (ANPRM) on this subject that PHMSA published in the
Federal Register on October 29, 2009 (74 FR 55797).

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

    On December 29, 2006, PHMSA's pipeline safety program was
reauthorized by the 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 focus on damage prevention, including
additional resources in the form of State damage prevention grants,
clear program guidelines as well as additional enforcement authority to
encourage States to develop and sustain effective excavation damage
prevention programs. The PIPES Act identifies nine elements that
effective damage prevention programs should include. These are
essentially identical to the nine elements noted in the DIMP Report
discussed in the previous subsection.
    The PIPES Act gave PHMSA 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 one-call 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 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.
    Section 2 of the PIPES Act limited the Secretary's ability to take
civil enforcement action against these excavators unless the Secretary
determined that the State's enforcement of its damage prevention laws
is inadequate to protect safety.

E. Advance Notice of Proposed Rulemaking

    On October 29, 2009, PHMSA published an ANPRM (74 FR 55797) 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 comments received on the ANPRM were generally
supportive of the need for this rulemaking.

F. Notice of Proposed Rulemaking

    On April 2, 2012, PHMSA published a Notice of Proposed Rulemaking
(NPRM) (77 FR 19800) that reflected the comments and input received in
connection with the ANPRM. The NPRM proposed to respond to the
congressional mandate specified in Section 2 of the PIPES Act and
included proposed amendments to Title 49, Code of Federal Regulations
(CFR) to establish the following:
    1. Criteria and procedures PHMSA would use to determine the
adequacy of State pipeline excavation damage prevention law enforcement
programs. PHMSA would first need to determine that the State's
enforcement program is inadequate before conducting an administrative
enforcement proceeding against an excavator for violating Federal
requirements;
    2. An administrative process for States to contest notices of
inadequacy from PHMSA should the States elect to do so;
    3. The Federal requirements PHMSA would enforce in States with
inadequate excavation damage prevention law enforcement programs; and
    4. The adjudication process for administrative enforcement
proceedings against excavators where Federal authority is exercised.

III. Advisory Committees Meeting

    On December 12, 2012, the Gas Pipeline Advisory Committee \6\ and
the Liquids Pipeline Advisory Committee \7\ met jointly in Alexandria,
Virginia. The Committees are statutorily mandated advisory committees
that advise PHMSA on proposed safety standards, risk assessments, and
safety policies for natural gas and hazardous liquids pipelines. Both
committees were established under the Federal Advisory Committee Act
(Pub. L. 92-463, 5 U.S.C. App. 1) and the pipeline safety laws (49
U.S.C. 60115). Each committee consists of 15 members, with membership
evenly divided among the Federal and State governments, the regulated
industry, and the public. The Committees advise PHMSA on the technical
feasibility, practicability, and cost-effectiveness of each proposed
pipeline safety standard.
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    \6\ Officially designated as the Technical Pipeline Safety
Standards Committee.
    \7\ Officially designated as the Technical Hazardous Liquid
Pipeline Safety Standards Committee.
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    During the meeting, the Committees considered the NPRM to establish
excavation damage prevention enforcement actions applicable to third-
party excavators. To assist the Committees in their deliberations,
PHMSA presented a description and summary of the major issues for
comment. These issues are (1) the criteria for evaluating State
enforcement programs, (2) the Federal excavation standard, and (3) the
incentives for States to implement adequate enforcement programs.
    After discussion, both Committees separately voted to recommend
that PHMSA implement the NPRM with certain changes. Specifically, the
Committees recommended as follows:
    (1) The Liquids Advisory Committee voted unanimously, and the gas
advisory committee voted 10-to-1 that the Notice of Proposed Rulemaking
as published in the Federal Register, in terms of the criteria for
evaluating State enforcement programs, is technically feasible,
reasonable, cost-effective, and practicable if the following changes
are considered:
     PHMSA develops a policy, incorporated into the preamble of
the final rule, that clarifies the scope and applicability of the State
evaluation criteria. The policy will address the

relative importance and intent of each of the criteria and the three
items identified in paragraph 9 of a document provided by member
Pierson.\8\
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    \8\ At the Advisory Committees' meeting, member Pierson
representing the pipeline industry submitted a written
recommendation for the members' consideration.
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    The three items of paragraph 9 are:
     PHMSA should look beyond enforcement actions in evaluating
a State damage prevention program. PHMSA should consider using a broad
range of factors, such as a State's investigation processes, standards
for excavators, excavator education efforts, and commitment to
continued improvement.
     The criteria to determine whether a State damage
prevention program is deemed adequate should also include consideration
of whether the State's one-call centers are required to provide a
mandatory positive response to locate requests. A mandatory positive
response will ensure that an excavator is aware of whether owners/
operators have marked the requested area prior to the beginning of an
excavation, consistent with Common Ground Alliance (CGA) Best Practice
4-9.
     To engage stakeholders in the process of determining the
adequacy of a State's program, the administrative process for States
should be amended to include public comment. PHMSA should accept public
comment on the adequacy of a State's damage prevention program.
    The Liquids Advisory Committee voted unanimously and the Gas
Advisory Committee voted 10-to-1 to recommend that PHMSA implement the
NPRM with the changes reflected.
    (2) Both Committees unanimously voted that the NPRM as published in
the Federal Register, in terms of the proposed Federal excavation
standard, is technically feasible, reasonable, cost-effective, and
practicable if the following changes are considered:
     Eliminate the homeowner exemption.
     PHMSA develops a policy, incorporated into the preamble of
the final rule that clarifies the scope and applicability of the
Federal excavation standard. The policy will address triggers for
Federal enforcement, how PHMSA will consider State exemptions in
enforcement decisions, and how the Federal excavation standard will be
applied in States with inadequate enforcement programs.
     In addition, the items 2 through 5 and 7 as provided by
member Pierson, should be considered for incorporation into the final
rule (including the policy as appropriate).
    The items are:
196.109--Discretion to Dispatch 911 Emergency Personnel
     PHMSA's proposed Sec.  196.109 states that, ``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.'' PHMSA should eliminate the discretion
of the excavator in determining whether emergency personnel should be
dispatched.
196.103--Excavator Responsibilities
     To foreclose ignorance as a reason for noncompliance,
PHMSA should edit Sec.  196.103, which lists an excavator's obligations
to protect underground pipelines from excavation-related damage.
Section 196.103 should be revised to read ``Prior to commencing
excavation activity the excavator must:''
196.107 & 196.109--Stop Work Provisions
     A ``stop work'' provision should be incorporated into the
regulations, which would require excavators to stop work if a pipeline
is damaged in any way by excavation activity until the operator of the
pipeline has had an opportunity to assess the damage. Consistent with
CGA Best Practice 5-25, PHMSA should also require the excavator to take
reasonable measures to protect those in immediate danger, the general
public, property, and the environment until the facility owner/operator
or emergency responders have arrived and completed their assessment of
the situation.
196.107--Backfilling Locations
     PHMSA should include a requirement that an excavator may
not backfill a site where damage or a near miss has occurred until the
operator has been provided an opportunity to inspect the site.
Reporting Time Frame
     PHSMA should not include an upper time frame for reporting
emergency release of hazardous products to appropriate authorities by
calling 911. Excavators should ``promptly'' report incidents.
    (3) The liquids advisory committee voted 8-to-1, and the gas
advisory committee voted 8-to-3, that the NPRM as published in the
Federal Register, in terms of the incentives for States to implement
adequate enforcement programs, is technically feasible, reasonable,
cost-effective, and practicable if the following changes are
considered:
     Retain the potential penalty to base grants but consider
lowering the percentage that may be affected.
     Develop a policy, incorporated into the preamble of the
final rule that clarifies how base grants will be calculated by
including the State program evaluation criteria defined in the final
rule.
     Reduce the grace period (Sec.  198.53) from 5 years to 3
years.
     Ensure the Governors of States with inadequate enforcement
are directly informed of PHMSA's findings, including potential
consequences to base grant funding.

PHMSA's Response to the Committees' Recommendations

    With respect to Item 1, PHMSA has considered the Committees'
recommended changes to the criteria for evaluating State enforcement
programs. PHMSA has developed a policy, outlined below in this
preamble, which clarifies the scope and applicability of the State
evaluation criteria. The policy addresses the relative importance and
intent of each of the criteria.
    PHMSA has also considered the three items identified in paragraph 9
of the document provided by member Pierson. With regard to the first
item, which addresses the factors PHMSA should consider when evaluating
State enforcement programs, PHMSA believes that the seven criteria
listed in section Sec.  198.55 of this final rule are adequate for
evaluating the effectiveness of a State damage prevention enforcement
program. PHMSA recognizes that there are many factors, such as
excavator education and continual improvement, which contribute to
effective damage prevention programs; however, this final rule is
intended to address damage prevention enforcement and not other program
elements.
    With regard to the second item offered by member Pierson, the term
``positive response'' refers to communication with the excavator prior
to excavation to ensure that all contacted pipeline operators have
located and marked their underground facilities. PHMSA agrees that
positive response ensures that an excavator is aware of whether
operators have marked an area prior to the beginning of excavation.
PHMSA supports CGA Best Practice 4-9. However, PHMSA did not propose in
the NPRM to review States' use of positive response in determining the
adequacy of State enforcement programs, which means that the concept
has not been subject to public or stakeholder review. In addition,
PHMSA believes that positive response is outside the scope of this
rulemaking,

which is focused on evaluating State enforcement programs. Therefore,
PHMSA has not included positive response in the criteria listed in
Sec.  198.55 of this final rule.
    PHMSA also did not propose in the NPRM to engage stakeholders in
the process of determining the adequacy of a State's enforcement
program, as suggested in the third item from member Pierson. Like
positive response, the concept of stakeholder review of State programs
has not been subject to stakeholder and public review. Additionally,
PHMSA believes that engaging stakeholders in determining the adequacy
of State programs would be overly cumbersome for both PHMSA and the
States and would result in significant delays in the determination
process.
    With respect to Item 2, PHMSA has considered the Committees'
recommendation to consider changes to the proposed Federal excavation
standard. In response to the Committees' recommendation, PHMSA has
eliminated the homeowner exemption originally proposed in Sec.
196.105. PHMSA eliminated the homeowner exemption because homeowners
excavating on their own property without first calling 811 poses a
significant risk of excavation damage to pipelines. PHMSA has also
developed a policy, incorporated into the preamble of this final rule,
which clarifies the scope and applicability of the Federal excavation
standard. The policy addresses triggers for Federal enforcement, how
PHMSA will consider State exemptions in enforcement decisions, and how
the Federal excavation standard will be applied in States with
inadequate enforcement programs. This policy document will be posted on
the agency's Web site.
    PHMSA also addressed the other items provided by member Pierson.
PHMSA has eliminated the phrase, ``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'' from Sec.  196.109 and the phrase, ``where an underground gas or
hazardous liquid pipeline may be present'' from Sec.  196.103. With
regard to Sec. Sec.  196.107 and 196.109, PHMSA has not incorporated a
``stop work'' provision into the regulation. This provision was not
proposed in the NPRM and has not received review from stakeholders and
the public. Likewise, PHMSA has not incorporated requirements
consistent with CGA Best Practice 5-25 for the same reason. With regard
to Sec.  196.107, PHMSA has not included in the final rule a provision
disallowing backfilling because the provision was not proposed in the
NPRM and has not received review from stakeholders and the public. With
regard to the Reporting Time Frame, PHMSA has modified the proposed
Sec.  196.109 to reflect the recommendations.
    With regard to Item 3, PHMSA has considered the Committees'
recommendation to consider changes to the proposed incentives for
States to implement adequate enforcement programs. As suggested, PHMSA
has retained the potential penalty to base grants and has lowered the
percentage of base grants that may be affected from 10 percent to four
percent. However, PHMSA has not reduced the grace period noted in Sec.
198.53 from 5 years to 3 years. PHMSA believes that some States may
need a full 5 years to successfully update their State damage
prevention laws to implement an adequate enforcement program. PHMSA has
also developed a policy, incorporated into this preamble, which
clarifies how base grants will be calculated by including the State
program evaluation criteria defined in Sec.  198.55. The policy also
addresses PHMSA's process for notifying Governors of States with
inadequate programs, including potential consequences to base grant
funding. PHMSA reserves the right to modify these policies in the
future, if necessary.

Policies

    PHMSA will prepare stand-alone documents and post them on the
agency's Web site for the following two policies: State Enforcement
Program Evaluation Criteria, and Federal Enforcement Policy.
State Enforcement Program Evaluation Criteria
    The criteria PHMSA will use to evaluate the adequacy of State
damage prevention law enforcement programs are listed in Sec.  198.55
of this final rule. The criteria are:
     Does the State have the authority to enforce its State
excavation damage prevention law using civil penalties and other
appropriate sanctions for violations?
     Has the State designated a State agency or other body as
the authority responsible for enforcement of the State excavation
damage prevention law?
     Is the State assessing civil penalties and other
appropriate sanctions for violations at levels sufficient to deter
noncompliance and is the State making publicly available information
that demonstrates the effectiveness of the State's enforcement program?
     Does the enforcement authority (if one exists) have a
reliable mechanism (e.g., mandatory reporting, complaint-driven
reporting) for learning about excavation damage to underground
facilities?
     Does the State employ excavation damage investigation
practices that are adequate to determine the responsible party or
parties when excavation damage to underground facilities occurs?
     At a minimum, do the State's excavation damage prevention
requirements include 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 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 PHMSA regulated
natural and other gas or hazardous liquid, must promptly report to
other appropriate authorities by calling the 911 emergency telephone
number or another emergency telephone number.
     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.
    The evaluation will involve all of the criteria, and the final
determination will be based on the totality of the review. The
following policy describes the manner in which PHMSA intends to apply
the criteria. As experience with adequacy reviews is gained, PHMSA may
modify this approach as necessary.
    Criteria 1 and 2 guidance:
     Criteria 1 and 2 are pass/fail.
     If the answer to either of the questions posed in criteria
1 or 2 is ``no,'' the State excavation damage prevention law
enforcement program will likely be deemed inadequate.
    Criterion 3 guidance:
     PHMSA will seek records that demonstrate that the State
enforcement agency is using its enforcement authority and imposing
appropriate sanctions for violations. If a State cannot demonstrate use
of its enforcement authority, the State enforcement

program will likely be deemed inadequate.
     PHMSA expects States to maintain records that demonstrate
whether the rate of excavation damage incidents is being reduced as a
result of enforcement. The result of PHMSA's review of a State's
records in this regard will not, by itself, render a State enforcement
program inadequate.
     PHMSA expects State enforcement programs to generally make
damage prevention law enforcement information and statistics available
to the public via a Web site. PHMSA does not expect States to violate
any State laws, jeopardize any ongoing enforcement case, or post
information that would violate the privacy of individuals as defined by
State or Federal law. The result of PHMSA's review of the public
availability of a State's information and statistics will not, by
itself, render a State enforcement program inadequate.
    Criterion 4 guidance:
     PHMSA will review how State enforcement programs learn
about excavation damage to underground pipelines. In particular, PHMSA
will be looking for reporting mechanisms that encourage parity in the
application of enforcement resources. For example, does the reporting
mechanism identify potential violations of law by both excavators and
pipeline operators? If the State enforcement program learns of
violations via road patrols that specifically target excavators without
valid excavation tickets, how does the State also learn about
violations of other provisions of State damage prevention laws, such as
operators' failure to locate and mark pipelines? Also, PHMSA will
review the State's methods for making stakeholders aware of the process
and requirements for reporting damage incidents to the enforcement
authority.
     The result of PHMSA's review of a State's program under
criterion 4 will not, by itself, render a State enforcement program
inadequate.
    Criterion 5 guidance:
     PHMSA expects State enforcement programs to be balanced
with regard to how they apply enforcement authority.
     PHMSA expects enforcement programs to be focused on the
responsibilities of not only excavators, but also of utility owners and
operators.
     PHMSA seeks patterns of enforcement activity that
demonstrate that penalties are applied to the responsible party or
parties in excavation damage incidents and not consistently to only one
stakeholder group.
     The result of PHMSA's review of a State's program under
criterion 5 will not, by itself, render a State enforcement program
inadequate.
    Criterion 6 guidance:
     PHMSA will review State requirements to ensure they
address the basic Federal requirements in the PIPES Act for excavators,
such as using an available one-call system.
     The result of PHMSA's review of a State's requirements
will not, by itself, render the State's enforcement program inadequate.
    Criterion 7 guidance:
     PHMSA expects States to document the exemptions provided
in State damage prevention laws for excavators and one-call membership,
and any such exemptions should not be too broad. Documentation should
include the types of exemptions included in State law and any reason
for the exemptions, such as data or other evidence that justifies the
exemptions.
     The result of PHMSA's review of a State's program under
criterion 7 will not, by itself, render a State enforcement program
inadequate.
    The criteria are listed in order of greatest to least importance.
That is, criteria 1 and 2 and a portion of criterion 3 are pass/fail,
while criteria 4 through 7 are not pass/fail. PHMSA may declare a State
enforcement program inadequate if the State's program does not satisfy
a combination of the criteria as described above. PHMSA will notify in
writing the Governor's office or other appropriate State authority of a
State deemed to have an inadequate enforcement program.
    States that PHMSA deems to have inadequate enforcement programs may
be subject to reductions in pipeline safety grant funding as described
in Sec.  198.53 of this final rule. PHMSA will use the existing process
for calculating base grants but is considering a policy that would
incorporate and/or substitute the evaluation criteria in Sec.  198.55
for the criteria that are currently used for evaluating State damage
prevention programs. PHMSA may modify its policies, as necessary, for
determining how inadequate enforcement programs may impact pipeline
safety grant funding.
Federal Enforcement Policy
    PHMSA may enforce the Federal excavation standard defined in 49 CFR
part 196, as established by this final rule, in States that PHMSA has
deemed to have inadequate damage prevention law enforcement programs.
The following policy describes the scope and applicability of the
Federal excavation standard.
    PHMSA may use its enforcement authority, as limited by the law and
this final rule, in any excavation damage case involving a violation of
this standard in a State where a finding of inadequacy has been made.
PHMSA generally will focus its limited resources on serious violations
that have the potential to directly impact safety.
    PHMSA will determine if Federal enforcement action is warranted on
a case-by-case basis. PHMSA will seek to use its enforcement authority
in cases where PHMSA believes Federal enforcement against an excavator
is appropriate and will deter future infractions (PHMSA already
exercises its enforcement authority against pipeline operators who
commit violations).
    PHMSA is flexible with regard to how it learns about excavation
damage incidents that may warrant Federal enforcement action. PHMSA may
learn about incidents through complaints from stakeholders, incident
reports, the media, and other mechanisms.
    PHMSA acknowledges that most State damage prevention laws and
regulations are more specific than the Federal excavation standard
defined in this final rule. The Federal excavation standard forms the
``floor'' and sets forth the basic requirements for excavators so that
its application can be fair and consistent even in States with very
different requirements. When determining whether to take Federal
enforcement action for an alleged violation of the Federal excavation
standard, PHMSA will be cognizant of the damage prevention practices of
the State in which the alleged violation occurred. For example, PHMSA
will be sensitive to exemptions, waiting periods, tolerance zones, and
other specific requirements that States could have applied to
excavators in the State prior to the determination of inadequacy.

IV. Summary and Response to Comments

    PHMSA received 40 comments from pipeline trade associations,
excavation and construction trade associations, the National
Association of Pipeline Safety Representatives (NAPSR), PHMSA State
partners, the CGA, State one-call organizations and one-call service
providers, utility locating trade associations, the American Farm
Bureau Federation (AFBF), the Association of American Railroads (AAR),
the Gas Processors Association (GPA), pipeline operators, utility
locating companies, pipeline safety consultants, and citizens.
    List of Commenters:

1. American Farm Bureau Federation (AFBF)
2. American Gas Association (AGA)

3. American Public Gas Association (APGA)
4. Association of Oil Pipe Lines (AOPL) and American Petroleum
Institute (API)
5. Associated General Contractors of America (AGC)
6. Association of American Railroads (AAR)
7. Black Hills Corporation
8. Bob Fenton
9. Center Point Energy (CenterPoint)
10. Common Ground Alliance (CGA)
11. Distribution Contractors Association (DCA)
12. Emily Krafjack (2 separate comments)
13. Emma K.
14. Gas Processors Association (GPA)
15. Industry Perspective (AGA, AGC, AOPL, API, DCA, NUCA, and NULCA)
16. Interstate natural Gas Association of America (INGAA)
17. Iowa Association of Municipal Utilities (IAMU)
18. Iowa One Call
19. Iowa Utilities Board (IUB)
20. Kansas Corporation Commission (KCC)
21. Kern River
22. MidAmerican Energy Company (MidAmerican)
23. Missouri Public Service Commission (Missouri PSC)
24. National Association of Pipeline Safety Representatives (NAPSR)
25. National Grid
26. National Utility Contractors Association of Ohio (NUCA of Ohio)
27. National Utility Contractors Association (NUCA)
28. National Utility Locating Contractors Association (NULCA)
29. New York State Department of Public Service (NPDPS)
30. Northern Natural Gas
31. National Utility Contractors Association of Pennsylvania (NUCA of
Pennsylvania)
32. Ohio Gas Association (OGA)
33. Oleksa and Associates, Inc. (Oleksa)
34. Paiute Pipeline Company (Paiute)
35. Pennsylvania One Call System, Inc. (Pennsylvania One Call)
36. Qualified One Call Systems (Oleksa comments repeated)
37. Southwest Gas Corporation (Southwest)
38. Tennessee Regulatory Authority (TRA)
39. Texas Pipeline Association (TPA)
40. Texas Pipeline Safety Coalition

General Comments

    Most of the comments were supportive of the NPRM. PHMSA's State
partners have concerns regarding the potential reduction of State base
grant funding to States with inadequate excavation damage prevention
law enforcement programs. A few State partners questioned the authority
given to PHMSA by the PIPES Act to take enforcement action in States
with inadequate excavation damage prevention law enforcement programs.
A few comments were out of the scope of this rulemaking, either because
the comments were on a specific State's excavation damage program or
because the comments were regarding pipeline safety more generally.

Comments Requesting PHMSA To Include All Nine Elements

    Associated General Contractors of America (AGC), Distribution
Contractors Association (DCA), National Utility Locating Contractors
Association (NULCA), National Utility Contractors Association of Ohio
(NUCA of Ohio), and Southwest Gas Corporation (Southwest) commented
that not only enforcement but also all other elements should be
considered when evaluating the effectiveness of State excavation damage
prevention programs.
    AGC and DCA suggested that PHMSA take into account all nine
elements (as defined in the PIPES Act of 2006) when evaluating the
effectiveness of State damage prevention programs and take a holistic
and comprehensive approach to reviewing current State damage prevention
measures. AGC stated that the proposed standards place too much
emphasis on enforcement and the excavator, and too little emphasis on
the owner/operator and locators' responsibilities for timely and
accurate locates. The AGC is supportive of PHMSA taking a position to
evaluate States' overall damage prevention programs but suggests that
PHMSA make its intentions clearer in the final rule. NULCA and NUCA
stated that because the nine elements are supported by a broad range of
stakeholders, including the CGA, they should be the sole basis for the
evaluation of State programs.
Response
    PHMSA agrees that the overall effectiveness of State damage
prevention programs can be assessed by evaluating States' commitment to
and implementation of the nine elements. To that end, PHMSA has worked
with State partners to conduct regular reviews of State damage
prevention programs by characterizing States' level of implementation
of the nine elements. The results of these reviews are available on
PHMSA's Web site at http://primis.phmsa.dot.gov/comm/SDPPCDiscussion.htm. However, the scope of this rulemaking pertains to
the enforcement of State excavation damage prevention laws. Section 2
of the PIPES Act states that PHMSA may not conduct an enforcement
proceeding unless the State's enforcement program is determined to be
inadequate to protect safety. While other aspects of State damage
prevention programs are essential to the effectiveness of those
programs, the scope of this rulemaking is limited to the enforcement of
State damage prevention laws.
    With regard to the comment from AGC pertaining to the proposed
standards placing too much emphasis on enforcement and the excavator
and too little on the owner/operator and locators' responsibilities for
timely and accurate locates, PHMSA believes that the final rule
appropriately addresses the intent of Congress. PHMSA and its State
partners have long had the authority to enforce the existing damage
prevention regulations that are applicable to pipeline operators. These
existing regulations (49 CFR 192.614 and 195.442) require pipeline
operators to develop and implement damage prevention programs and to
locate their facilities in an accurate and timely manner when in
receipt of an excavation notice. In the context of this final rule, if
PHMSA conducts an enforcement proceeding in a State with an inadequate
enforcement program, PHMSA will ensure that enforcement is applied to
the responsible party, whether it is an excavator or a pipeline
operator. PHMSA also actively encourages its State partners to enforce
the existing damage prevention regulations that are applicable to
pipeline operators.

Comments Recommending That PHMSA Hold Public Meetings/Provide Education

    DCA, NUCA, and NUCA of Ohio suggested that PHMSA hold additional
public meetings before the agency issues a final rule. DCA and NUCA of
Ohio believe the proposed criteria for determining the adequacy of a
State damage prevention enforcement program are sufficient, but
recommend that, prior to moving forward with its enforcement authority
in a given State, PHMSA should invite all government and industry
stakeholders to a discussion about the alleged problems with the
State's enforcement practices. They recommended that in order to meet
Element 2 of the PIPES Act, which calls for participation by operators,
excavators, and other stakeholders, PHMSA should ensure that all
interested stakeholders are invited to

the table. NUCA stated that the final rule would result in significant
impacts to PHMSA's regulated community; therefore, significant outreach
and education is needed for stakeholders that will be impacted by this
rulemaking action.
    The Pennsylvania One Call System, Inc. (Pennsylvania One Call)
stated that enforcement should be used as a means of modifying
behavior. Pennsylvania One Call advised PHMSA to be mindful of States'
different methods to achieve the same end of damage prevention. For
example, Pennsylvania's Underground Utility Line Protection Act
provides for a range of enforcement tools that include warning letters,
administrative sanctions, fines, and criminal penalties to encourage
proper behavior by covered parties.
Response
    PHMSA gathered considerable stakeholder input that informed the
development of the final rule and provided opportunity for public
participation and comment. PHMSA published an ANPRM on this topic in
2009 to gather stakeholder input prior to publishing the NPRM. PHMSA
also developed a video, made available on the PHMSA Web site, which
summarized the NPRM and invited comments.
    In the context of this final rule, PHMSA does not intend to invite
all government and industry stakeholders to a discussion about the
alleged problems with a State's enforcement practices prior to
proceeding with enforcement action in a given State. However, PHMSA
does welcome the opportunity to participate in those discussions as a
matter of course. PHMSA agrees that this rulemaking will require
considerable outreach and education for stakeholders impacted by this
final rule.
    PHMSA is mindful of States' various enforcement methods as
described by Pennsylvania One Call. These enforcement methods are
effective in many States. PHMSA believes that the ability of a State to
enforce its damage prevention law, specifically with civil penalties,
is essential to an effective enforcement program because it deters
noncompliance and ensures a level playing field for businesses that
adhere to the requirements.

Comments Requesting Cost Recovery for Excavators' Downtime

    NUCA requested that PHMSA include cost consideration for
excavators' downtime when excavation damage is due to pipeline
operators' failure to locate and mark pipelines properly. NUCA stated
that pipeline owners or operators are often not subject to the same
types of penalties that excavators are, are not required to reimburse
excavators for any of their expenses, and are often subject to
significantly lower fines. NUCA stated that in some States, for
example, excavators that damage pipelines must reimburse owners or
operators up to three times the expenses, can be prevented from bidding
on certain projects, and can be fined up to $10,000. NUCA suggested
PHMSA include in the final rule that ``where a pipeline is hit because
of the failure to locate and mark the pipeline accurately in a timely
fashion and the excavator is not at fault, owners or operators and/or
their contractors (including locators) should be required to reimburse
excavators for their costs.'' NUCA stated that this should include any
damages to the excavator's equipment or property and any downtime
incurred by the excavator while the true location of the pipeline is
determined. NUCA stated that because these losses could be significant
when an excavator is required to shut down a project due to the
pipeline being not marked or marked inaccurately, this problem must be
addressed by PHMSA.
Response
    This final rule does not infringe upon any party's right or ability
to pursue cost recovery related to downtime. As NUCA itself pointed
out, downtime is a compensatory liability matter and has nothing to do
with damage prevention. It would be an inappropriate use of Federal
regulations to entitle any specific group to downtime compensation.
Since PHMSA did not propose in the NPRM to include the language
suggested by NUCA, the language has not been made available for public
comment and cannot be included in the final rule. PHMSA believes
downtime is not within the scope of this rulemaking.

Comments Supporting the Proposed Rule

    Association of Oil Pipe Lines (AOPL) and American Petroleum
Institute (API) are in strong support of the final rule and urge PHMSA
to issue and implement a final rule expeditiously to help advance the
ultimate goal of zero pipeline incidents. AOPL and API support PHMSA's
proposed criteria for evaluating State excavation damage prevention law
enforcement programs for minimum adequacy. The Ohio Gas Association
(OGA) stated that it endorses PHMSA's efforts to bring national
uniformity to the enforcement of pipeline damage prevention laws. The
Texas Pipeline Association (TPA) stated that it is supportive of the
proposed Federal damage prevention and enforcement requirements as well
as the proposed regulations on State program evaluation. TPA
recommended that these regulations be adopted in order to encourage
effective enforcement.
    Ms. Emily Krafjack recommended that PHMSA adopt all proposed
regulatory language and noted that all gathering line classes could
benefit from the NPRM. Ms. Emma K. commented in general support of
pipeline safety.
Response
    PHMSA appreciates the comments in support of promulgating a final
rule expeditiously.

Comments Opposing the Proposed Rule

    The Iowa Utilities Board (IUB), the Kansas Corporation Commission
(KCC), and the Tennessee Regulatory Authority (TRA) are not in support
of the NPRM. The IUB believes the notification standards in the final
rule would conflict with the law of the State in which excavation is to
be performed if the State's law includes the definitions used to
determine when notice of excavation is required. The IUB agrees with
PHMSA that there is no authority for or expectation of PHMSA
enforcement of any provision of State law that goes above and beyond
what PHMSA is authorized to enforce in 49 U.S.C. 60114(d). The IUB
stated that PHMSA must still recognize the system established by State
law when considering enforcement of Part 196.
    The IUB further indicated that PHMSA does not have authority over
excavators except as provided in 49 U.S.C. 60114(d). Nor would 49 CFR
part 196 apply to persons other than excavators. The IUB stated that
the proposed language of this final rule exceeds the scope of the
specific law on which it is based and asserts broader authority than
Federal law permits. The IUB stated that if the intent of the proposed
Sec.  196.205 is to make the point that PHMSA can take civil penalty
action against excavators who violate 49 CFR part 196 provided the
conditions of 49 U.S.C. 60114(f) have been met, then the final rule
should be clarified. The IUB stated that 49 U.S.C. 60114(f) says PHMSA
may find State enforcement is inadequate only if it does not (in
PHMSA's estimation) adequately enforce that State's damage prevention
laws. The IUB believes that PHMSA does not have the power to challenge
a State law due to perceived inadequacies in areas other than adequate
enforcement of that State law.

    KCC believes PHMSA taking direct enforcement action against
excavators will likely cause confusion and uncertainty in the excavator
community. State damage prevention laws regulate many types of
underground utilities in addition to protecting underground pipelines
subject to regulation by PHMSA and subject to the standards established
by PHMSA under 49 U.S.C. 60114(d). KCC stated that currently, 49 CFR
part 198 requires States to address underground utility damage
prevention on their own terms, taking into account the State's
demographics and political process to structure laws and regulations
best suited for the operations of its regulated community. However,
under PHMSA's proposal, KCC believes that the potential exists that on-
going attempts to tweak the State law in order to meet PHMSA's evolving
``adequacy'' requirements may upset the delicate legislative balance
established in the Kansas Underground Utility Damage Prevention Act and
potentially lead to a double standard: One set of rules for excavators
working in the vicinity of natural gas and hazardous liquid pipelines,
and another set of rules for all other excavators.
    KCC stated that PHMSA proposes to establish its own Federal
standards in those States where PHMSA deems the State's enforcement
efforts ``inadequate'' and questioned why PHMSA would not merely
enforce the State standards. KCC stated that PHMSA's NPRM does not
include any exemptions, whereas the State program includes State-
specific exemptions from the requirements of the State program for
certain categories of ``excavators.'' In doing so, PHMSA goes well
beyond stepping in to enforce State standards where a determination has
been made that the State's enforcement programs are inadequate. KCC
stated its view that 49 U.S.C. 60114(f) does not authorize such action.
    TRA stated that it is concerned that the approach PHMSA proposes in
the NPRM to penalize States that implement and operate pipeline
excavation damage prevention law enforcement programs that do not meet
what the TRA considers to be potentially ambiguous Federal standards is
not sound policy. Rather than using the penalty of withholding funding,
the TRA advises PHMSA that an incentive, like increased funding or more
flexibility in use of existing funding, is more appropriate for States
that implement sufficient pipeline excavation damage prevention law
enforcement programs. If PHMSA finds that a State pipeline excavation
damage prevention law enforcement program is inadequate, the TRA is
concerned that such a finding may be misinterpreted as a finding about
a State's efforts to promote pipeline safety through inspections.
    TRA commented that review of State excavation damage prevention law
enforcement programs is part of PHMSA's annual review of a State's
overall pipeline safety program. Therefore, to avoid such
misunderstanding by the public, the TRA recommends that if PHMSA finds
a State excavation damage prevention enforcement program deficient,
PHMSA should clearly state that the finding does not imply that a
State's pipeline safety program is inadequate in protecting the public.
Also, Texas Pipeline Safety Coalition provided red line edits to the
proposed regulatory language.
Response
    PHMSA recognizes that the proposed Federal excavation standard is
less specific than many existing State damage prevention laws. In
particular, State laws are often more specific than the proposed
Federal rule in the areas of what constitutes excavation, exemptions
established by State laws, notification standards, and what
specifically is enforceable. This final rule is intended, in part, to
establish Federal ``backstop'' enforcement authority in States with
inadequate damage prevention law enforcement programs. As has been
explained at length in the ANPRM and the NPRM, the Federal authority
will only be used when the State has not been adequately enforcing its
law. This position is clarified in the enforcement policy in the
preamble of this final rule. Additionally, in response to the TRA's
comments, it is important to note that incentives and grant funding
have been made available to build State damage prevention programs. It
is only the States that truly fail at damage prevention enforcement
where excavators will be subject to Federal authority. Finally, if
PHMSA finds a State's damage prevention enforcement program inadequate,
that is not the same as PHMSA finding the State's entire pipeline
safety program inadequate.
    PHMSA disagrees with the IUB's comment that the NPRM asserts
broader authority than the law permits. One aspect of a State's damage
prevention authority is the extent to which the appropriate State
authority is able to execute and enforce it. Whether a given State's
law does not provide enforcement mechanisms or a State has such
enforcement mechanisms but is not exercising its enforcement authority,
the PIPES Act provides authority for PHMSA to establish and exercise
Federal authority to ensure effective enforcement.
    A major goal of this final rule is to encourage States to adopt and
sustain adequate damage prevention law enforcement programs. However,
PHMSA has limited ability to encourage States to do so. In addition to
incentivizing States with grant funds, one way PHMSA can encourage
States is by making a portion of a State's base grant funding dependent
upon that State having an adequate damage prevention law enforcement
program. PHMSA currently makes base grant funding dependent upon the
adequacy of some aspects of States' damage prevention programs. This
position, which defines how the State program evaluation criteria will
be applied, is clarified in the policy in the preamble of this final
rule.

On PHMSA's Request for Comment on Its View That State and Federal
Requirements Will Not Be Enforced Simultaneously; the Existence of a
Federal Requirement Should Not Present Any Conflicts With Existing
State Requirements for Excavators

    KCC stated that it believes that the final rule could result in
simultaneous Federal and State enforcement actions. KCC also stated its
belief that PHMSA has not rejected the possibility of taking Federal
enforcement action on an incident that occurred before the State
program was ruled inadequate. KCC stated that it believes significant
due process considerations exist that, if ignored by PHMSA, may later
undermine PHMSA's own ability to take appropriate enforcement actions
when PHMSA's enforcement actions are subject to judicial scrutiny. KCC
seeks a definitive recognition from PHMSA on the limitations imposed on
PHMSA's authority to take such an enforcement action.
    New York State Department of Public Service (NYDPS) believes that
PHMSA has not fully considered the potential for Federal regulations
and State laws to be enforced at the same time. NYDPS stated that it
needs to be fundamental to all State excavation damage prevention
programs that a call to 811 will notify all utilities of the
excavator's intent to excavate at a particular work site and that there
is one set of rules that applies to the State damage prevention
program. Even if PHMSA deems a State program inadequate, the State law
will not be repealed by this action and would remain in effect. The
regulations proposed contemplate this because they assume a one-call
system is actively operating in the State. NYDPS is

concerned that the imposition of a Federal program may have the
deleterious effect of causing confusion among one-call laws and
systems. This may be particularly true in instances where a State's law
goes beyond Federal regulations in its application or requirements.
While there may only be 1 one-call center that takes notices of intent
to excavate under both the Federal and State programs, it would be up
to the excavators and operators to ensure that their employees
understand the different requirements in States that have been deemed
inadequate. NYDPS believes PHMSA should fully consider these impacts.
Also Missouri Public Service Commission (Missouri PSC) stated that the
proposed Federal regulations are the minimal standard. It is not clear,
however, whether a determination that a State's damage prevention
program is inadequate would preclude that State from pursuing
violations of the State damage prevention laws.
Response
    PHMSA can assure these commenters that it will not pursue Federal
enforcement action if a State has an adequate enforcement program in
accordance with this final rule. Likewise, PHMSA will not take
enforcement action on incidents that occurred in a State before that
State's enforcement program was deemed inadequate. Additionally, PHMSA
will not enforce State standards, but will instead enforce the minimum
Federal standards defined in this final rule. When conducting
enforcement, PHMSA will be considerate of State practices and
exemptions in the application of the minimal standard defined in this
final rule.
    As we have stated repeatedly in the ANPRM and the NPRM, PHMSA has
no intention of taking over the damage prevention responsibilities of
States. PHMSA's enforcement authority is intended to backstop State's
enforcement authority. This final rule only impacts States deemed to
have inadequate enforcement programs. If a State is exercising its
damage prevention enforcement authority, there is no reason to believe
there will be any need for Federal enforcement. If a State has not been
exercising its authority, and PHMSA exercises Federal authority, PHMSA
would not expect that State to suddenly start exercising its authority
on the very same violation that was the subject of a Federal
enforcement action. A State that decides to begin exercising its
authority should petition to have the finding of inadequacy lifted and
begin enforcement once it is lifted and should not ``overfile'' on a
Federal case.
    If PHMSA determines a State's excavation enforcement program is
inadequate, it is unlikely that the State is conducting enforcement.
Conversely, if a State is enforcing its damage prevention law, it is
unlikely that PHMSA would deem that State's enforcement program
inadequate. Therefore, it is unlikely that Federal and State
enforcement would be applied simultaneously. If instances arise where
Federal and State enforcement could potentially be applied
simultaneously, PHMSA will work cooperatively with the State
enforcement agency to ensure that enforcement is applied fairly and
consistently. PHMSA strongly encourages States to enforce their own
damage prevention laws.

On PHMSA's Request for Comments on Ways or Mechanisms That PHMSA Can
Utilize To Become Aware of Excavation Damage Incidents

    Missouri PSC stated that the lack of a mechanism to notify PHMSA of
excavation damages to pipelines is an obvious weakness in the NPRM.
Under Missouri statute, damages are required to be reported to the
Missouri One Call System (MOCS). Operator data compiled by the Missouri
PSC indicates, on average, operators are aware of about 200 excavation
damages to intrastate natural gas pipelines each month; yet, the MOCS
is not receiving nearly that many reports. If a State is found to have
an inadequate damage prevention program, PHMSA would have to require
operators to report damages to their facilities or institute a
complaint-driven mechanism to become aware of damages.
Response
    As stated in previous responses to other comments, PHMSA's goal is
to act as a Federal backstop enforcement authority to States. PHMSA
does not intend to conduct enforcement for all excavation damages in
States with inadequate enforcement programs. On the contrary, PHMSA's
limited Federal enforcement resources will likely only be applied in
limited cases. To that end, PHMSA will learn about violations of this
final rule through existing channels (i.e., PHMSA-required incident
reports, National Response Center reports, and the media), and the
final rule does not require Federal reporting at this time.

On Whether the Evaluation Criteria Should Be Weighted

    KCC believes the adequacy of State enforcement of State safety
programs must be evaluated on a holistic basis that would necessarily
include weighting the criteria. It is important to KCC to have a law in
place and the ability to administer the law with appropriate
performance metrics. How the laws are administered--and at what level
fines are imposed--is less important to KCC if the desired results of
damage prevention are being achieved. The KCC suggested that the seven
proposed criteria should be ordered as follows in importance: 1, 2, 6,
4, 5, 7, and 3. The KCC asked PHMSA to note the additional criteria
found in 49 CFR 198.55(b), which allow PHMSA to take unilateral action
based on an individual State enforcement action, should not be
considered in the evaluation of an effective program.
    Missouri PSC agrees with PHMSA that weighting the criteria would be
difficult. On the other hand, Missouri PSC recommends PHMSA provide
clarification as to whether each of the criteria items in 6(a), 6(b),
6(c)(i), and 6(c)(ii) carry the same ``weight'' as the other criteria
items--i.e., whether there are seven items in the criteria or 10--
including the four issues in item 6. In giving a ``weight'' or point
value to each of the criteria, the Missouri PSC recommends PHMSA
provide additional clarification as to whether there is an expectation
or quantification of the criteria a State would have to achieve to be
considered ``adequate.'' Finally, the Missouri PSC recommends PHMSA
provide additional clarification as to whether certain criteria are
considered critical and/or essential for a program to be evaluated as
adequate.
Response
    PHMSA believes that some of the criteria for evaluating State
enforcement programs, as proposed in the NPRM, should be considered
more important than others because some criteria are more critical and/
or essential than others. For example, if a State does not have
enforcement authority provided by State law, then that State's
enforcement program should be automatically considered inadequate.
However, the matter of exemptions, while important, is less critical.
PHMSA has included a policy in the preamble of this final rule that
defines how the criteria will be applied when evaluating State
enforcement programs. In addition, PHMSA will post a policy document on
the agency's Web site. The adequacy determination involves a complex
judgment based on multiple factors, and we will not attempt to discuss
definitive or deterministic outcomes in all possible scenarios here.
    In order to use Federal enforcement authority in a State, PHMSA
must first

declare the State's damage prevention law enforcement program
inadequate. PHMSA will not take unilateral Federal enforcement action
in a State that has an adequate enforcement program. However, PHMSA may
evaluate individual State enforcement actions in assessing the adequacy
of enforcement programs. No determination of State enforcement program
adequacy will be based solely upon a single State enforcement action.
Instead, PHMSA may evaluate the overall program, including past
enforcement cases, to gain a better understanding of the adequacy of
the State enforcement program within the context of the criteria listed
in Sec.  198.55 of this final rule.

On PHMSA's Request for Comment on Whether the Criteria for Evaluating
the Adequacy of State Excavation Damage Prevention Law Enforcement
Programs Are Clear, Well[hyphen]Defined, Consistent, and as Simple as
Possible

    KCC responded that consistent application of the criteria would be
difficult, at best, because of what it considers to be the lack of
well[hyphen]defined terms, phrases, and procedures on how the criteria
will be applied. KCC suggested that PHMSA include additional guidance
in the final rule on how the agency will define and apply such phrases
as ``sufficient levels,'' ``demonstrates effectiveness,'' and
``consider individual enforcement actions.''
Response
    PHMSA agrees that additional guidance is necessary regarding the
application of the criteria that will be used to evaluate the adequacy
of State damage prevention law enforcement programs. PHMSA has included
a policy that defines this guidance in the preamble of this final rule
and will post a policy document on the agency's Web site.

On PHMSA's Request for Comments Regarding Using a Determination of
State Enforcement Program Adequacy To Be a Factor in Determining State
Pipeline Safety Grant Funding Levels

    Missouri PSC stated it recognizes that the only incentive or
disincentive that PHMSA has to make States comply with the damage
prevention criteria is to reduce grant funding if the State does not
have and/or enforce what are deemed by PHMSA to be adequate damage
prevention laws. However, legislative action is required to make
changes to Missouri's excavation damage prevention statute, and the
legislative actions are outside the control of the Missouri PSC. An
adequate damage prevention program is only a portion of a State's
overall pipeline safety program. Not having adequate funding for the
entire pipeline safety program reduces the effectiveness of Missouri's
overall pipeline safety program. The result would be that Missouri
could have an inadequate damage prevention program and an inadequate
pipeline safety program.
Response
    PHMSA does not intend to render State pipeline safety programs
inadequate through the reduction of base grant funding. The reduction
of base grant funding for States with inadequate enforcement programs
is one tool available to PHMSA to incentivize States to implement
effective enforcement programs. However, base grant funding is not the
only incentive PHMSA can use. PHMSA will provide other incentives for
States to implement adequate enforcement programs, including
notification to the Governor explaining PHMSA's findings of enforcement
program inadequacy and the potential safety and financial consequences
for the State, publishing PHMSA's findings of inadequacy on PHMSA's
public Web sites, giving grant funding to States for building
stakeholder support for improved enforcement programs, and giving
ongoing support to stakeholders in their efforts to improve enforcement
programs. PHMSA may be able to provide additional support and
incentives.

On 911 Notification by the Excavator

    Missouri PSC stated that the PIPES Act of 2006 requires excavators
to promptly call the 911 emergency telephone number if damage results
in specific circumstances; however, the Missouri PSC asserts PHMSA's
position in the NPRM is unreasonable. The Commission stated that
discretion should be allowed as to when a call to 911 is warranted
subject to whether (1) there is an emergency and 911 is called to
dispatch emergency personnel; or (2) there is not an emergency and
emergency personnel are not required. The Missouri PSC stated that the
911 operator should not be notified of damage to a pipeline unless
emergency services are needed. The Federal Communications Commission
and many communications companies have adopted ``311'' as the non-
emergency number. Calling 911 to report damage in a non-emergency
situation may obligate the 911 operator to dispatch even though the
caller indicates emergency response personnel are not required at the
damage site.
Response
    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. PHMSA believes that a
call to 911 in such circumstances is fundamental to public safety.

Federal One-Call System

    Oleksa suggested that PHMSA review the various one-call systems,
determine whether or not they are ``qualified,'' and publish a list of
``qualified'' one-call systems on the PHMSA Web site.
Response
    By simply dialing 811, the national call-before-you-dig telephone
number, damage prevention stakeholders will be connected to a qualified
one-call system as defined in 49 CFR 192.614 and 195.442.

Comments on the Proposed Regulatory Language

PART 196--PROTECTION OF UNDERGROUND PIPELINES FROM EXCAVATION
ACTIVITY

Subpart A--General

Sec.  196.1  What is the purpose and scope of this part?

    AGA suggested that the new part 196 should include requirements for
excavators to follow a tolerance zone, which explicitly states the
forms of ``softer excavation'' that are allowed in the immediate area
of the marked location of the pipeline that would include hand-digging
and vacuum excavation. AGA stated that these concepts are consistent
with the excavation best practices in Chapter 5 of the Common Ground
Alliance Best Practices 9.0. Part 196 should include language about the
excavator having to take steps to protect and even expose the pipeline
using soft excavation methods to confirm accuracy of the markings.
Also, AGA recommended a maximum of a 1-hour time limit for excavators
to report damage to the pipeline operator. In addition, AGA requested
that proposed Sec.  196.107 be amended to state that an excavator may
not backfill a site where damage has occurred until the operator has
been provided an opportunity to inspect the pipeline at the excavation
site.
    AOPL and API stated that the minimum threshold requirements for a
State damage prevention program should include an incident notification
requirement. They believe, however,

that a 2-hour notification ceiling, as suggested in the NPRM, appears
unnecessarily prescriptive. They recommended that the standard for
excavators to ``promptly'' report incidents to operators should remain
effective without a mandated notification period. On the other hand,
Missouri PSC stated that its regulations require notification of 2
hours following discovery by the operator, or as soon as practical if
emergency efforts to protect life and property would be hindered.
Missouri PCS stated that no issues have been identified with this time
frame and recommended a 2-hour time limit for excavators to report
damages.
    Paiute and Southwest recommended that PHMSA require immediate
notification of any damage to the pipeline operator. They stated that
an excavator does not have the knowledge to determine the severity of a
dent or gouge and/or whether or not the damage requires immediate
repair.
    PHMSA affirms the Common Ground Alliance Best Practices regarding
soft excavation methods. However, PHMSA has not included tolerance zone
and/or soft excavation requirements in this final rule. Tolerance zone
and soft excavation requirements are very specific requirements and
should be left to the States. Federal imposition of these requirements
would establish double standards in States with similar requirements.
PHMSA reiterates that one of the purposes of this final rule is to
provide backstop damage prevention law enforcement authority in States
with inadequate enforcement programs; the purpose is not to dictate
overly specific requirements of safe excavation. PHMSA believes that
the purpose of the Federal enforcement program is to provide a minimum
standard. Further, as stated in the enforcement policy in the preamble
of this final rule, PHMSA intends to consider the requirements of State
damage prevention laws when conducting Federal enforcement proceedings,
including State requirements regarding tolerance zones and soft
excavation practices.
    PHMSA agrees with API and AOPL regarding the requirements that
excavators ``promptly'' report excavation damages to pipeline
operators. PHMSA does not intend to create more specific standards than
States that already define damage reporting timeframes. PHMSA will
consider State requirements for reporting timeframes in instances of
Federal enforcement.

Sec.  196.3  Definitions.

Excavation/Exemptions

    The AFBF believes that, based on the current definition in the
NPRM, normal agricultural and farm tillage practices would be
considered excavation. AFBF believes the failure to exempt farmers and
ranchers from the requirements of one-call laws prior to ``excavation''
is impractical and not workable for today's agricultural producers.
AFBF requested that an explicit exemption for normal agricultural
practices be given.
    AAR believes that the NPRM's definition of ``excavation'' is
unclear from the perspective of railroad maintenance-of-way activities.
AAR stated that if railroads were subject to one-call requirements for
their maintenance-of-way activities, there would be hundreds, if not
thousands, of calls daily. AAR believes routine maintenance-of-way
activities should not be subject to one-call notification requirements.
    The Interstate Natural Gas Association of America (INGAA) stated
that it opposes the last sentence of the proposed definition of
excavation because it excludes homeowners excavating on their own
property with hand tools. However, INGAA stated that it has no
objection to the homeowner exemption to homeowners or occupants using
only hand tools, rather than mechanized excavating equipment, including
power augers, on their own property and digging no deeper than 12
inches below natural grade.
    TPA stated that, with the growing use of plastic pipe in
distribution, transmission, and gathering pipelines, the risk to
pipeline infrastructure from hand digging increases. Plastic pipe can
be punctured or severed by common digging tools used by homeowners.
Beyond the damage to the pipeline infrastructure, excavation damage to
plastic pipes would pose a risk to the homeowner. Rather than granting
a blanket exemption to homeowners, TPA recommends that PHMSA limit the
exemption to homeowner excavations by hand digging to depths of no more
than 16 inches. TPA stated that, while the homeowner exemption should
be limited, PHMSA should add an exclusion to the definition that would
permit probing by an operator.
    TPA also stated that the proposed definition of ``Excavation,'' in
Sec.  196.3 introduces ambiguity by the phrase ``below existing
grade.'' It is not uncommon for the grade of the land above a pipeline
to vary at different points along the pipeline. TPA stated that because
the proposed regulations do not contain any further guidance on these
matters, it would, at least initially, fall to individual excavators to
determine if they are engaging in ``excavation'' and whether they are
subject to the regulations. TPA also stated that once a pipeline is
installed, erosion and prior land grading would impact the amount of
cover for the pipeline. TPA stated that there is no reason to take
these risks when the alternative is to make a phone call and wait a
couple of days for a pipeline to be marked. Therefore, TPA urges PHMSA
to remove the phrase ``below existing grade'' from the definition of
excavation.
    AGC stated that the term ``excavator,'' and thus the focus of
Federal enforcement proceedings where the excavator is at fault, should
refer to all parties doing digging work including, but not limited to,
State agencies, municipal entities, agricultural entities, and
railroads. State excavation damage prevention laws and enforcement
should also apply equally to pipeline operators and their contract
excavators and locators. However, AGC agrees that some exemptions can
be justified with data, and these exemptions can only be determined at
the State level, while many of the existing ones should be carefully
scrutinized by PHMSA and eliminated if they present a danger to buried
facilities.
    The Black Hills Corporation opposes the exemption to homeowners
using hand tools from requiring the use of a ``Call Before You Dig''
one-call system as well as from any Federal administrative enforcement
action because it goes against the public safety educational drive for
``Call Before You Dig'' messages. Also, the Iowa Association of
Municipal Utilities (IAMU) stated that exemptions to homeowners using
hand tools are in direct conflict with most one-call laws across the
country.
    Iowa One Call believes that the proposed excavation definition
would specifically exclude homeowners excavating on their own property
with hand tools. The Iowa One Call stated that this exclusion is
inconsistent with Iowa law and directly conflicts with the State's
damage prevention public awareness and outreach communications campaign
and program initiatives; however, Iowa One Call believes that some Iowa
exceptions, such as opening a grave in a cemetery, normal residential
gardening, operations in a solid waste disposal site which has planned
for underground facilities, and normal farming operations, are
judicious. To exclude these types of well-developed State exceptions
would be impractical and possibly unrealistic.

    NAPSR stated that the proposed definition of excavation only covers
operations performed below existing grades, which may lead to
confusion, especially in cases where excavation activities are
performed, backfilled, and graded on multiple occasions over a period
of time. The proposed definition of excavation specifically excludes
homeowners excavating on their own property with hand tools and would
directly conflict with many State laws and with State and national
awareness initiatives. NAPSR stated that any person performing
excavation activities, including homeowners, should be encouraged to
call for utility locates and wait the required time allowed for marking
before excavation begins, pursuant to State regulations and
requirements. Therefore, NAPSR stated that the definition of excavation
should not exclude hand digging by homeowners, and the sentence ``This
does not include homeowners excavating on their own property with hand
tools'' should be removed from the definition of ``excavation'' in
Sec.  196.3.
    The IUB stated that 49 U.S.C. 60114(d)(1) requires excavators to
use the one-call notification system of the State; therefore, the
definition of excavation in the NPRM should defer to the definition of
the State in which the excavation is proposed. The IUB stated the
homeowner exclusion would directly conflict with many State laws and
with State and national awareness initiatives to encourage landowners
to call for utility locates before digging, and therefore, hand digging
by homeowners should not be excluded. However, the IUB stated that
excluding farm operations is impractical and unrealistic. Also, NUCA
requested that the ``excavator'' definition should include examples
such as excavator, contractor excavator, in-house excavators,
municipalities, etc.
    Northern Natural Gas supports the reduction of exemptions to one-
call damage prevention laws. Northern suggested no exemptions. As for
farming operations, Northern recommended a requirement for one-call
notification whenever the farming operation penetrates the soil to a
depth of 12 inches or greater. Northern stated that examples requiring
a one-call notification for farm work would include mechanical soil
sampling, drain tiling, chisel plowing, sub-soiling, ripping,
terracing, and waterway or post installation. Also, OGA stated that
there should not be a homeowner exemption because there must be the
universal acceptance of the requirement to ``Call Before You Dig.''
Response
    Most of the comments regarding the definition of excavation are
focused on how the definition of the term will be interpreted in light
of existing exemptions from the requirements of State damage prevention
laws. The definition of excavation in this final rule is intentionally
broad and inclusive. However, PHMSA recognizes that the definition of
excavation in this final rule is broader and more generic than many of
the definitions of excavation in State damage prevention laws. State
laws are specific about which classes of excavators and/or which types
of excavation are or are not exempt from State law. In conducting
Federal enforcement, PHMSA will be considerate of the definitions of
excavation, including exemptions applicable to excavators, in State
damage prevention laws. However, PHMSA may choose to pursue Federal
enforcement actions against excavators who egregiously and/or
negligently damage pipelines in disregard of safety, regardless of
whether those excavators are exempt from State law. PHMSA's enforcement
policy is defined in the preamble to this final rule.
    PHMSA agrees with the comments from INGAA, TPA, IAMU, the Black
Hills Corporation, Iowa One Call, and NAPSR that oppose an exemption
for homeowners excavating on their own property with hand tools. The
exemption for homeowners has been removed from this final rule. PHMSA
has not included any exemptions for excavations in this final rule.
Exemptions in this final rule could create confusion regarding the
applicability of State and Federal standards. Instead, PHMSA will be
considerate of State exemptions in exercising Federal enforcement
authority.
    PHMSA has not clarified the types of excavators to whom the final
rule applies, as suggested by NUCA. The definition of the term
``excavation'' is broad enough to encompass all types of excavators
regardless of their relationships to other entities.
    PHMSA agrees with TPA regarding the need to eliminate the phrase
``below existing grade'' from the definition of ``excavation.'' The
definition of ``excavation'' has been updated accordingly.

Damage/Excavation Damage

    AOPL and API believe revising the definition of damage or
excavation damage in this section would provide greater clarity. They
requested that because nicks, coating scrapes, and damage to cathodic
protection wiring or appurtenances could affect the integrity of the
pipeline, the word ``impact'' in the definition should be replaced with
the term ``excavation activity.'' They stated that damage can be caused
without physical impact: coating can be worn while pulling up trees or
digging out roots in close proximity to a pipe; cathodic protection
wiring can be cut, broken, or disconnected as a result of stresses
created by heavy loading due to improper backfilling; or external
loading itself can create undue stress on the pipe, creating an unsafe
condition. Damage can also be caused when the support under the
pipeline is taken away. Therefore, they requested a broader definition
that would encompass a broad range of activities that impact safety.

Response

    PHMSA agrees with AOPL and API regarding the need for greater
clarity in the definition of damage or excavation damage. The
definition of these terms has been modified to address these concerns.

Pipeline

    NAPSR stated that the proposed definition of ``pipeline'' does not
cover all appurtenances of a pipeline structure, only those ``attached
or connected to pipe . . .'' This would exclude tracer wire systems or
other devices, such as radio frequency identification or other
electronic marking system (EMS) devices, used to facilitate proper
locating and marking of the operator's infrastructure. NAPSR
recommended that the definition of ``pipeline'' be written to include
tracer wire and other devices used to facilitate proper locating and
marking of the operator's infrastructure. NUCA requested that the
pipeline definition should clearly describe the types of pipelines to
which the final rule will apply, such as gathering, transmission, and
distribution (including gas mains and service lines), as defined in
existing laws and regulations, so everyone understands exactly what
types of lines are included.
Response
    PHMSA agrees with NAPSR about the need for the definition of
``pipeline'' to be expanded to include tracer wire and other devices
used to facilitate proper locating and marking of the operator's
infrastructure. PHMSA also agrees with NUCA regarding the need to
clearly describe the types of pipelines to which the final rule will
apply. The definition of ``pipeline'' has been modified accordingly.

Tolerance Zone

    TPA suggests that PHMSA add a definition of ``tolerance zone'' to
Sec.  196.3. TPA stated that such a definition is critical to
determining the accuracy of the locate markings and the area where
``proper regard'' must be used by an excavator as required by proposed
Sec.  196.103(c). Without the addition of this definition, PHMSA will
be repeatedly placed in a difficult enforcement situation if a dispute
arises between the excavator and the operator about the accuracy of the
marking or the type of excavation practices used near the pipeline.
Although the States have many different standards for a tolerance zone,
the least controversial standard to use for a Federal standard would be
CGA's Best Practice 5-19, which defines the tolerance zone as the width
of the facility plus 18 inches on either side of the outside edge of
the underground facility on a horizontal plane. TPA suggested that this
definition or a similar definition would facilitate enforcement and
enhance the protection of pipeline infrastructure and public safety.
Response
    PHMSA has not included a definition of ``tolerance zone'' in this
final rule. State laws are often specific about tolerance zones, and
PHMSA does not wish to create confusion by establishing an excavation
standard that is more specific or more restrictive than some State
standards. Instead, when conducting Federal enforcement, PHMSA will be
mindful of tolerance zones as defined by the law in the State where
PHMSA is conducting enforcement.

Subpart B--One-Call Damage Prevention Requirements

Sec.  196.101  What is the purpose and scope of this subpart?

    TPA suggested that the title of this Subchapter should be revised
by deleting the word ``One-Call'' because the proposed Subpart B
includes most of the excavation practice requirements, operator
locating requirements, and One-Call process. TPA also urges PHMSA to
add a provision to Subpart B requiring excavators and operators to
report any damage to pipeline facilities using the CGA Damage
Information Reporting Tool (DIRT). TPA stated that this provision
should also impose a time limit for reporting so that the relevant data
is captured as soon as possible after the damage event occurs.
Response
    PHMSA agrees with TPA's suggestion to remove the word ``One-Call''
from the title of this subpart. The title has been changed from ``One-
Call Damage Prevention Requirements'' to ``Damage Prevention
Requirements.'' PHMSA disagrees with TPA's suggestion to require
excavators and operators to report damages to the CGA DIRT database.
The CGA DIRT database was developed as a voluntary system. Further,
PHMSA does not own or control the CGA DIRT database, and PHMSA believes
it would be inappropriate to require the use of CGA DIRT database
through regulation.

Sec.  196.103  What must an excavator do to protect underground
pipelines from excavation-related damage?

    NAPSR, NYDPS, AGA, INGAA, DCA, NUCA of Ohio, AOPL and API stated
that in Sec.  196.103, the language ``where an underground gas or
hazardous liquid pipeline may be present'' would directly conflict with
many State laws and with State and national awareness initiatives. They
stated that the excavator should always call for staking prior to
excavating. They stated that there is no way for an excavator to
determine if a pipeline may be present without a staking request.
Therefore, they recommended that the language ``where an underground
gas or hazardous liquid pipeline may be present'' be removed or
modified from Sec.  196.103.
    NAPSR stated that the language in Sec.  196.103(b), which reads,
``If the 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,''
fails to define what is meant by ``in the area'' and does not specify
the amount of time in which the operator is expected to ``wait for the
pipeline operator to arrive'' and ``mark the location.'' NAPSR
recommended that the term ``area'' should be better defined, the time
between calling for locates and the beginning of excavation should be
specified, and actions an excavator is to take when an operator fails
to establish and mark the location of its underground facilities should
be specified.
    TPA stated that to increase the clarity of Sec.  196.103, PHMSA
should restructure the section by creating two major subsections, with
one addressing activities prior to excavation and the other addressing
activities during excavation. Also, TPA suggested that at least 2
business days should be required for the line locate request through a
notification center before the planned beginning of an excavation. TRA
stated that such a standard is consistent with the CGA Best Practices.
TPA suggests revisions similar to CGA Best Practices 5-17 and 5-19 and
believes these revisions should not be controversial. TPA provided
recommended language to modify the proposed language in Sec.  196.103.
TPA stated that if PHMSA does not adopt TPA's recommendations, it
suggests that the introductory language to Sec.  196.103 be revised to
read, ``Prior to and during excavation activity. . .'' to clarify the
complete time period when the requirements of proposed Sec.  196.103
apply.
    Pennsylvania One Call suggested that Sec.  196.103(a) should be
amended to provide that an excavator must furnish the one-call center
with specific location information consistent with State law,
regulation, or practice because it believes that the current language
does not address this matter.
    NUCA suggested that the language in Sec.  196.103(b) should require
excavators to wait a prescribed time period (established by State law)
for pipeline operators to arrive at the excavation site and mark the
location of underground pipeline facilities. AOPL and API requested
that the language in Sec.  196.103(b) stating that an excavator shall
``. . . wait for the pipeline operator to arrive at the excavation site
and establish and mark the location of its underground pipeline
facilities before excavating,'' be rephrased to read ``Wait for 48
hours from the time of placing a one-call notification prior to
excavation, to permit the pipeline operator to arrive at the excavation
site and establish and mark the location of its underground pipeline
facilities.'' They suggested that if the call is placed on a weekend,
the 48-hour notification period would commence the next business
morning, and excavation may proceed if the excavator has received an
affirmative response from all underground utility operators as marked
or cleared.
    NAPSR stated that Sec.  196.103(c) is vague and does not adequately
address what ``proper regard'' or ``respecting the marks'' means. NAPSR
stated that to clarify the section, PHMSA should add a reference to the
CGA best practices for safe excavation around an underground facility.
    AGA stated that Sec.  196.103(d) seems unnecessary because a
marking request is understood to be required at ``other'' locations.
DCA questions the need for Sec.  196.103(d) that would require
excavators to ``. . . make additional use of one-call as necessary to
obtain locating and marking before excavating if additional excavations
will be

conducted at other locations.'' DCA stated that the requirement seems
redundant. Excavators would have to comply with the requirements set
forth in Sec.  196.103(a), (b) and (c) for ``additional excavations''
that would be conducted at other locations.
    AOPL and API recommended that Sec.  196.103(d) state that, prior to
commencing excavation activity where an underground gas or hazardous
liquid pipeline may be present, the excavator must ``make additional
use of one-call as necessary to obtain locating and marking before
excavating if additional excavations will be conducted at other
locations.'' They stated that the language appears to only require the
use of one-call for excavations that are to be conducted at other
locations. Since some State laws require the additional use of one-call
for excavations that continue at the same location, AOPL and API
recommended that the clause ``. . . if additional excavations will be
conducted at other locations,'' be deleted, and that PHMSA replace the
phrase with the language ``. . . or a locate request or markings have
expired and a new one-call notification is required per applicable
state law'' in its place.
Response
    PHMSA agrees with the comments of NAPSR, NYDPS, AGA, INGAA, DCA,
NUCA of Ohio, AOPL, and API regarding the need to remove the language
``where an underground gas or hazardous liquid pipeline may be
present'' from Sec.  196.103. The section has been updated to reflect
the change. In addition, PHMSA has not adopted the recommendation from
NAPSR concerning wait times and actions to be taken when an operator
fails to mark its facilities. These issues are typically well-defined
in State law. PHMSA intends to be considerate of State law when
conducting Federal enforcement proceedings.
    PHMSA has not restructured the section by creating two major
subsections, as suggested by TPA. However, PHMSA has revised the
introductory language for the section to read, ``Prior to and during
excavation activity . . .'' to clarify the time period when the
requirements of the section apply.
    PHMSA has not adopted the suggestions from Pennsylvania One Call
and NUCA regarding amending the section to require that excavators
furnish the one-call center with information and wait the prescribed
time required by State law. The enforcement policy in the preamble of
this final rule provides that PHMSA will be considerate of State
requirements when conducting Federal enforcement proceedings.
    PHMSA has not adopted the recommendations of AOPL and API regarding
including specific language pertaining to wait times in Sec.
196.103(b). PHMSA does not wish to create Federal requirements that
differ vastly from State requirements. Excavators in each State should
already be familiar with the wait time requirements of State damage
prevention laws. A different Federal wait time requirement may create
confusion. PHMSA will be considerate of the requirements of State laws
in instances of Federal enforcement.
    PHMSA agrees with NAPSR that the proposed Sec.  196.103(c) is
generic. PHMSA has clarified the section in the final rule, but the
section is left intentionally generic to allow for the variability in
State damage prevention laws, which PHMSA will consider in any Federal
enforcement case. PHMSA has not made any references to CGA Best
Practices in the section.
    PHMSA disagrees with the comments of AGA and DCA regarding the
redundant nature of the proposed Sec.  196.103(d). PHMSA has not
removed this section from the final regulatory language. This language
is taken directly from the PIPES Act, and PHMSA considers it essential
to preventing excavation damage to pipelines.
    PHMSA agrees with the comments from AOPL and API regarding Sec.
196.103(d). However, PHMSA has not replaced the current language with
the language they recommended. The language AOPL and API recommended
refers specifically to State law, which PHMSA has no authority to
enforce. Therefore, the phrase ``. . . if additional excavations will
be conducted at other locations'' has been deleted and replaced with
the phrase ``. . . to ensure that underground pipelines are not damaged
by excavation.''

Sec.  196.105  Are there any exceptions to the requirement to use one-
call before digging?

    NAPSR stated that, in Sec.  196.105, the exemption for homeowners
conflicts with many State laws and with State and national awareness
initiatives. However, NAPSR commented that State laws may include
reasonable exemptions to the requirement to use one-call before digging
such as opening a grave in a cemetery, landfill operations, and tilling
for agricultural purposes. Therefore, NAPSR believes that any
requirements or exceptions on when to use the one-call system before
digging should be deferred to the State law.
    MidAmerican Energy Company (MidAmerican) stated that it is
concerned with the homeowner exemption language in Sec.  196.105, and
it believes that it would be safer and more appropriate to always
require the homeowner to call for a locate than leaving it to the
homeowner's discretion.
    AGA stated that the exception from Federal enforcement for
homeowners using hand tools on their own property under Sec.  196.105
is to simply attempt to establish a reasonable boundary around the
excavation damages PHMSA would be considering for enforcement action in
those States with inadequate programs. Therefore, AGA recommended that
hand digging to shallow depths be allowed for any party since digging
with hand tools to shallow depths (less than 12 inches in depth) is
typically not one of the highest risks among third party excavations in
States with an inadequate program. AGA suggested that PHMSA delete the
sentence ``This does not include homeowners excavating on their own
property with hand tools'' since it is likely to cause confusion and is
unnecessary if the language in Sec.  196.105 is amended. AGA also
stated that it agrees with PHMSA's use of the word ``exception'' under
Sec.  196.105 since its incorporation into a Federal excavation
standard is very different from the one-call exemptions that exist at
the State level. AGA stated that consideration should also be given to
whether or not a farmer is a ``homeowner'' and if so, whether their
exception would be for their entire property or just for their farm.
AGA pointed out that Page 25 of CGA's 2010 DIRT Report shows that
``occupant/farmer'' is the excavator involved in 10 percent to 17
percent of the events collected for six of the eight One-Call System
International Regions, and AGA believes this is a significant issue.
    INGAA stated that homeowners using hand tools to dig more than 12
inches deep should not be exempt from contacting one-call and opposes
the Sec.  196.105 language that would exempt homeowners from contacting
one-call before digging with hand tools.
    TPA stated that Sec.  196.105 should be revised to read as follows:
``. . . provided that the homeowner does not dig deeper than 16
inches.''
    NUCA stated that in Sec.  196.107 homeowners should not be exempted
from calling one-call before excavation activity.
Response
    PHMSA agrees with the comments regarding the need to eliminate the
proposed exemption for homeowners.

This exemption has been removed from the regulatory language. The final
regulatory language is silent on the subject of exemptions/exceptions.

Sec.  196.107  What must an excavator do if a pipeline is damaged by
excavation activity?

    AOPL and API requested that Sec.  196.107 be amended to state that
an excavator may not backfill a site where damage or a near miss has
occurred until the operator has been provided an opportunity to inspect
the site. In addition, AOPL and API suggested that a stop work
requirement be included in Sec.  196.107 as, ``If a pipeline is damaged
in any way by excavation activity, the excavator must immediately stop
work at that location and report such damage to the pipeline operator,
whether or not a leak occurs. Work may not resume at the location until
the pipeline operator determines it is safe to do so.''
    CenterPoint stated that in Sec.  196.107 the excavator should not
backfill a pipeline if it is damaged by the excavator, and the
excavator should remain on site and leave the damaged area accessible
to the operator unless it would be unsafe or impractical to do so. If
the damaged area is not left accessible, the excavator should leave
clear markings to assist the operator with finding the damage.
    Kern River stated that Sec.  196.107 should first require that work
be stopped immediately and the pipeline operator be contacted
immediately since the excavator is not qualified to make a
determination of the extent of the damage caused to a pipeline.
    NAPSR recommended that Sec.  196.107 state ``. . . if a pipeline is
damaged in any way by excavation activity, the excavator must report
such damage to the pipeline operator.'' NAPSR stated that consideration
should be given to requiring the excavator to also notify the one-call
center in the event of damage to an underground facility and/or a
release of product to make sure there is a centralized location for the
reporting of damages and a method of proper documentation of pipeline
damages due to excavation.
    NYDPS stated that Sec.  196.107 requires excavators to notify the
pipeline operator if the facility is damaged in any way by the
excavation activities. The NPRM would require notification at the
``earliest practicable moment,'' but the NPRM indicates that PHMSA is
considering requiring notification in no less than 2 hours. NYDPS
stated that, instead of requiring a specific notification time, it
believes that the language in the NPRM is preferable. NYDPS recommended
that the regulation require, after the evacuation of employees and any
other endangered persons, ``immediate notification'' by the excavator
to the operator of any contact or damage to the pipeline, since this
language is somewhat less open to interpretation and less subjective
than the ``earliest practicable moment.''
    On the other hand, TPA stated that Sec.  196.107 should be revised
to include a time limit by which an excavator must notify the operator
of damage to a pipeline. TPA stated that even if there is no release of
product, an operator needs to get to the damage site as soon as
possible to assess the situation and take any necessary remedial
action. TPA suggested that the time limit be 2 hours following
discovery of the damage. TPA also suggested that Sec.  196.107 should
be revised to include a requirement that an excavator not backfill any
portion of a damaged pipeline without the operator's approval.
    Pennsylvania One Call stated that Sec.  196.107 be amended to cover
not only damage to a pipeline but also physical contact with a pipeline
because this would prevent an excavator from exercising discretion to
determine whether contact did or did not result in damage, and mere
contact could create damage to pipeline coating.
Response
    While PHMSA understands the comments from AOPL, API, CenterPoint,
and Kern River regarding stop work and backfill requirements, PHMSA has
not included these requirements in the final rule. These requirements
would be very difficult to communicate in States with inadequate
enforcement programs. The requirements would also be different from the
requirements of State damage prevention laws in most cases. PHMSA does
not wish to create confusion or create a scenario under which
excavators would be subject to Federal enforcement of a requirement of
which they would likely not be aware.
    PHMSA has considered requiring excavators to notify the one-call
center, in addition to the pipeline operator, in the event of
excavation damage to a pipeline. PHMSA does not believe this
requirement should be included in the final rule. One-call centers are
not necessarily equipped to accept damage reports in every State.
NAPSR's recommendation, therefore, could create an undue burden on both
excavators and one-call centers and could lead to confusion among
damage prevention stakeholders.
    In response to the comments from NYDPS and TPA regarding the time
limit for notice of damage to pipeline operators, PHMSA believes that
the language proposed in the NPRM is practical and enforceable.
Establishing a specific timeline may create confusion among
stakeholders in States where PHMSA has Federal enforcement authority.
    In response to the Pennsylvania One Call, PHMSA believes the
definition of the terms ``damage/excavation damage'' in Sec.  196.3 is
broad enough to encompass all of the types of excavation damage that
may have an impact on pipeline integrity and safety.

Sec.  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?

    AGA suggested in Sec.  196.109, PHMSA add a requirement that an
excavator responsible for damage that results in the escape of
dangerous fluids or gasses must take actions to protect the public
until the arrival of the operator or public safety personnel in a
manner consistent with the second half of CGA Best Practice 5-25: ``The
excavator takes reasonable measures to protect everyone in immediate
danger, the general public, property, and the environment until the
facility owner/operator or emergency responders arrive and complete
their assessment.'' AGA suggested that in Sec.  196.109, PHMSA delete
``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,'' because this type of
decision should rest with the 911 operator not the excavator.
    NAPSR commented that in Sec.  196.109, if the incident is such that
it ``may endanger life or cause serious bodily harm,'' then emergency
personnel should always respond to the site; the excavator should not
be making a ``judgment call'' at this point. NAPSR recommended that the
sentence ``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'' be removed from
the proposed language in this section.
    AOPL and API and INGAA suggested that Sec.  196.109 should specify
that if damage to a pipeline from excavation activity causes the
release of any material, either gas or liquid, from the pipeline, the
excavator must immediately stop work at that location and report the
release to appropriate emergency response authorities by calling 911.
Excavators should be required to contact the pipeline operator to
notify them of the release after contacting the appropriate emergency

response authorities. Work should not resume at the location until the
pipeline operator determines the work can be resumed.
    Kern River stated that Sec.  196.109 should first require that work
be stopped immediately, next that the damage be reported to appropriate
emergency response authorities, and finally that the pipeline operator
be promptly notified.
    MidAmerican commented that Sec.  196.109 requires excavators to
immediately report the release of hazardous products to the appropriate
emergency response authorities by calling 911. Once the 911 emergency
telephone number is called, Sec.  196.109 would allow excavators the
discretion of whether to request that emergency response personnel be
dispatched to the damage site. MidAmerican stated that it believes that
an exception should be made to the requirement to call 911 for pipeline
operators who damage their own pipelines. Pipeline operators' personnel
are directly on-site and can see that the necessary repairs can be made
safely and expeditiously without the need to first contact emergency
response personnel.
    NUCA, NUCA of Ohio, DCA, and Pennsylvania One Call stated that the
``911 requirement'' in Sec.  196.109 presents a ``Pandora's box'' to
the excavation community. They stated that professional excavators are
not first responders. Expecting a contract excavator to accurately
determine if the product released following excavation damage is one
that can ``cause serious bodily harm or damage property or the
environment'' is outside their responsibilities. They stated that the
decision as to whether a 911 call ought to result in a dispatch of
emergency responders is a matter to be decided by the 911 center, not
the excavator. They encourage PHMSA to revise or delete this provision
in the final rule. NUCA agrees with PHMSA's proposal for calling 911
except for the excavator needing to maintain the option to exercise
discretion on whether it is necessary for the 911 dispatcher to send
emergency response personnel. NUCA stated that in many situations, all
the excavator may need to do is inform the owner/operator that the
pipeline was damaged so the pipeline operator can respond with the
personnel who are best educated and equipped to handle the situation.
    TPA stated that Sec.  196.109 should be revised in three ways.
First, to prevent the excavators using their discretion to call 911,
the phrase, ``that may endanger life or cause serious bodily harm or
damage to property or the environment'' should be deleted. Second, to
eliminate any ambiguity in the final rule concerning when 911 should be
contacted, the phrase, ``of hazardous products,'' which occurs
immediately following the second occurrence of the word, ``release,''
in the first sentence of the Section, should be deleted. Third, the
phrase, ``in addition to contacting the operator,'' should be added to
the end of the first sentence of the Subsection to clarify that the
operator needs to be contacted first.
Response
    PHMSA disagrees with AGA's suggestion of requiring compliance with
CGA Best Practice 5-25. While PHMSA supports CGA Best Practices
(including Best Practice 5-25), PHMSA does not intend to require
compliance with the Best Practices through this regulation. PHMSA
agrees with AGA's and NAPSR's suggestion of removing the phrase, ``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'' from Sec.  196.109. The phrase has been
removed from the final regulatory language. PHMSA agrees with the
suggestions from AOPL, API, INGAA, and NUCA regarding the need for
excavators to contact 911 and the pipeline operator if excavation
damage causes a release. PHMSA has removed from the final rule the
proposed option for excavators to exercise discretion as to whether
emergency response personnel be dispatched to a damage site. For
reasons already noted in previous responses to comments, PHMSA
disagrees with the idea of requiring excavators to stop work because of
challenges related to communication and enforcement of the requirement.
    PHMSA disagrees with MidAmerican's belief that an exception to the
911 requirement be made for operators who damage their own pipelines.
The PIPES Act of 2006 requires the call to 911 in cases of excavation
damage that result in releases, regardless of who is conducting the
excavation.
    PHMSA has made the changes to Sec.  196.109 as recommended by TPA,
with one exception. PHMSA has not included the phrase, ``in addition to
contacting the operator,'' as recommended by TPA because contacting the
operator after excavation damage occurs is already required under Sec.
196.107.
    PHMSA has also modified Sec.  196.109 from the originally proposed
``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'' to ``any PHMSA regulated natural and
other gas or hazardous liquid as defined in parts 192, 193 or 195.''
PHMSA made this change to ensure consistency with existing PHMSA
regulations.

Sec.  196.111  What if a pipeline operator fails to respond to a locate
request or fails to accurately locate and mark its pipeline?

    NAPSR stated that Sec.  196.111 states that ``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 . . .''
However, most State regulations are more stringent than Sec. Sec.
192.614, 195.442, and 60114, which generally cover only the broad
basics and do not include as detailed compliance requirements as State
law. NAPSR stated that PHMSA would not have a way of knowing if the
pipeline operator fails to respond. In addition, it is not clear to
NAPSR whether additional reporting requirements on pipeline operators
or excavators, or both, would be established. NAPSR stated that State
laws, regulations, and rules usually provide specific and detailed
requirements for when an operator fails to respond to a locate request
or fails to accurately locate and mark its pipelines. Therefore, NAPSR
stated that any requirements concerning failure to respond or
accurately locate needs to defer to the State law in the State where
the event occurred.
    Pennsylvania One Call requested that Sec.  196.111 be amended to
make it clear that PHMSA's direct role in State enforcement normally
will be limited to those situations where (a) the State lacks
enforcement authority, or (b) the State systematically refuses (by
action or inaction) to utilize the authority it has.
    NUCA stated that Sec.  196.111 should include action against the
owner/operator that results in reimbursement to the contractor for
financial losses due to the owner/operators' failure to locate and/or
accurately mark the pipeline. NUCA stated that this requirement would
encourage pipeline owner/operators to respond to a request for ``a
locate'' in a timely manner.
    TPA stated that Sec.  196.111 requires enforcement for the failure
of an operator to accurately locate and mark its pipeline, but there is
no standard in part 196 establishing the requirements for accurate
locating and marking. TRA suggested that, to make sure pipeline
operators accurately locate and mark their pipelines under the Federal
damage prevention requirements,

Sec.  196.111 should be revised by adding a sentence that reads as
follows: ``A locate mark will be considered accurate if it is located
anywhere within the tolerance zone.''
Response
    In response to the comments from NAPSR, PHMSA will be considerate
of State laws and regulations when conducting Federal enforcement. The
policy in this preamble further clarifies PHMSA's position. States
often do not enforce 49 CFR 192.614 and 195.442. PHMSA believes that
enforcement of these regulations, applicable to pipeline operators,
ensures fairness in the damage prevention process and that pipeline
operators take their damage prevention responsibilities seriously.
    In response to the comments from Pennsylvania One Call, Sec.
196.111 will only be enforced in States with damage prevention law
enforcement programs that PHMSA deems inadequate.
    For reasons stated in response to another comment above, PHMSA
disagrees with NUCA's recommendation that Sec.  196.111 should include
action against the owner/operator requiring reimbursement to the
excavator for financial losses due to an owner/operators' failure to
locate and/or accurately mark a pipeline.
    PHMSA disagrees with TPA's recommendation to include in Sec.
196.111 a sentence that reads as follows: ``A locate mark will be
considered accurate if it is located anywhere within the tolerance
zone.'' PHMSA has not defined a tolerance zone in this final rule. In
conducting Federal enforcement, PHMSA will be considerate of State
requirements for accurate marking, consistent with the enforcement
policy included in the preamble to this final rule.

Subpart C--Enforcement

Sec.  196.203  What is the administrative process PHMSA will use to
conduct enforcement proceedings for alleged violations of excavation
damage prevention requirements?

and

Sec.  196.205  Can PHMSA assess administrative civil penalties for
violations?

    AOPL and API requested that PHMSA clarify whether civil penalties
in Sec.  196.205 are intended to be used for failure to report a near-
miss, or whether civil penalties will only be issued for damage and
release events. They suggested that PHMSA should clarify that civil
penalties may be imposed pursuant to the enforcement authority granted
in subpart C, even if an excavator violates the subpart but does not
cause damage. They support a case-by-case approach to imposing
penalties, support weighing the facts and circumstances in each case,
and support PHMSA's discretion to assess civil penalties regarding
near-misses based on its investigation as to the excavator's efforts at
communicating near-miss information. On the other hand, CenterPoint and
the IUB were skeptical of the effectiveness of near-miss reporting.
CenterPoint stated that the most difficult aspect of reporting near
misses may be defining exactly what one is and stated that
investigating possible near misses to determine if they are reportable
would also tie up limited resources. IUB questioned if meaningful or
accurate data would be collected by such a requirement. IUB stated that
excavators would have little incentive to report near-misses that would