RegulusPipeline research62 FR 61695
Passage 1[Federal Register Volume 62, Number 223 (Wednesday, November 19, 1997)] [Rules and Regulations] [Pages 61695-61700] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-30290] ----------------------------------------------------------------------- Research and Special Programs Administration [Docket No. PS-101A, Amdt. 192-82 , 195-60] RIN 2137-AC 57 Mandatory Participation in Qualified One-Call Systems by Pipeline Operators AGENCY: Research and Special Programs Administration (RSPA), DOT. ----------------------------------------------------------------------- SUMMARY: This final rule requires that operators of onshore gas, hazardous liquid, and carbon dioxide pipelines participate in qualified one-call systems as part of the required excavation damage prevention programs. The rule also limits the current exclusion of certain small gas systems from compliance with the damage prevention program requirements. This final rule is intended to reduce excavation damage, the largest single cause of pipeline failures. EFFECTIVE DATE: This final rule takes effect May 18, 1998. FOR FURTHER INFORMATION CONTACT: Christina Sames by telephone at (202) 366-4561 or through the Internet at [email protected], about this document, or the Dockets Unit at (202) 366-5046, for copies of this document or other material in the docket. A one-call system is a communication system established individually or jointly by utilities, government agencies, or other operators of underground facilities to provide a single telephone number (other methods of communication are also used) for excavators and the public to call to notify participating members of their intent to excavate. The one-call systems receive the excavation notices and transmit them to operators of underground pipeline facilities and other underground facilities that participate in the system. Upon receipt of the excavation notices, participating operators that have underground facilities in the vicinity of the excavation arrange for the timely identification and temporary marking of underground facilities. In addition, underground operators may inspect the site during the excavation activities to ensure the safety of their underground facilities. National One-Call Campaign and the Damage Prevention Quality Action Team#
Passage 2There are now 75 one-call systems operating in 49 states and the District of Columbia. Not all of the operating one-call systems meet the qualifications for a ``one-call notification system,'' as defined in 49 CFR 198.39. Hawaii and Puerto Rico are currently without a one- call system. Forty-seven states and the District of Columbia have damage prevention laws that, to varying degrees, govern the activities performed by excavators and persons locating and temporarily marking underground facilities. However, most of the existing state damage prevention programs do not meet all of the requirements of Sec. 198.37, ``State one-call damage prevention program.'' To address the problem of incomplete national one-call coverage and the deficiencies in some existing one-call systems, RSPA has launched a national campaign to encourage states to adopt improved one-call notification systems. The national campaign targets states for concentrated outreach to assist their efforts to upgrade current one- call systems. The campaign focuses on mandatory operator participation, mandatory excavator participation, State-wide coverage, and civil penalty enforcement. The national campaign also works with selected states currently without one-call legislation or those which need to strengthen existing legislation. RSPA has also formed a Damage Prevention Quality Action Team to address third party damage to underground facilities including pipelines. The Team includes representatives from RSPA, the natural gas and hazardous liquid pipeline industry, the telecommunications industry, States, one-call centers, and the insurance and contracting industries. The Team is evaluating existing damage prevention education campaigns and will design and implement a national public education campaign to reduce third party damage. Rulemaking Proposal (Docket No. PS-101A)#
Passage 3On March 20, 1995, RSPA issued a notice of proposed rulemaking (NPRM) titled ``Mandatory Participation in Qualified One-Call Systems by Pipeline Operators'' (60 FR 14714). The NPRM proposed to remove the option in Secs. 192.614(a) and 195.442(a) that permits a pipeline operator to receive and record notification of planned excavation activities rather than to participate in a qualified one-call system covering the area where the operator's pipeline is located. The NPRM proposed to require that pipeline operators only participate in qualified one-call systems. A one-call system would be considered qualified if the state had adopted a one-call damage prevention program in compliance with Sec. 198.37. A one-call system would also be considered qualified if it operates in accordance with Sec. 198.39, provides a pipeline operator the same opportunity to participate in one-call system management that is offered to other owners of underground facilities, and assesses a participating pipeline operator a fee that is proportionate to the service provided by the one-call system. The NPRM also proposed to extend the excavation damage prevention program requirements to petroleum gas systems subject to Sec. 192.11 and to small gas systems whose primary activity includes the transportation of gas. The NPRM proposed to limit the current exemption for operators of gas systems, including operators of master meter systems, whose primary activity does not include the transportation of gas. RSPA is sensitive to the minimum resources of these small operators and proposed that small operators be exempted from identifying excavators in the vicinity of the pipeline. RSPA also proposed that small operators be exempted from notifying excavators of the damage prevention program's existence and purpose and on how to learn the location of underground pipelines before excavation activities begin. In addition, RSPA proposed that these small operators be exempted from the requirement for a written damage prevention program. These operators would still be required to provide a means of receiving and recording notification of planned excavation activities, to provide for notification of persons who give notice of an intent to excavate of the type of temporary marking to be used and how to identify the markings, to provide for temporary marking of buried pipelines in the area of excavation act#
Passage 4ivity before, as far as practical, the activity begins, and to provide for the inspection of pipelines that the operator has reason to believe could be damaged by excavation activities. Under the proposed regulation, pipeline operators would continue to receive and record the notification of planned excavation activities using their own personnel in areas where one-call systems are not yet established, or where a qualified one-call system is not yet in place. However, operators would be required to join a qualified one-call system once it was established. RSPA received sixteen comments in response to the NPRM. These commenters represented natural gas and hazardous liquid pipeline operators, industry trade associations, and government agencies. All sixteen commenters voiced general support for the NPRM. Among those in support, a state pipeline safety agency commented that many states have already instituted mandatory one-call membership for regulated intrastate underground facility operators. The majority of the commenters also voiced a general opinion that all underground facility operators and all excavators should be required to participate in a qualified one-call system. Commenters recognized that RSPA can only require regulated pipeline operators to participate in qualified one-call systems and supported RSPA's current initiative to encourage all underground facility operators and all excavators to participate in a qualified one-call system. One commenter also supported RSPA's reduction of state grants to states that do not establish mandatory#
Passage 5participation for all underground utilities and excavators. One commenter recommended clarification of the proposed language in Sec. 192.614(e) to ensure that municipal gas systems are included in the damage prevention regulations. The commenter stated that the proposed wording could be interpreted to exclude municipal gas systems from certain damage prevention regulations. Municipal gas systems are currently required to have a damage prevention program, and RSPA has clarified the language in this final rule to prevent misinterpretation. Another commenter suggested that RSPA clarify that operators are not precluded from receiving calls directly from individuals on activities near a pipeline. Certain pipelines are required to be marked with line markers that show the location of that pipeline. These line markers list the operator and a telephone number for individuals to call to receive or transmit information on the pipeline. RSPA agrees that a pipeline operator should be allowed to receive information directly from individuals on activities near the operator's pipeline. This final rule does not preclude that from occurring. Other recommended changes to the NPRM focused on the problem of overlapping one-call service areas, and the terms ``disproportionate cost'' and ``coverage.'' These recommended changes are discussed below. Comments on Overlapping One-Call Service Areas#
Passage 6There are limited areas of the United States, primarily in the northwest and in the state of Texas, where more than one one-call system covers the same service area. In areas of overlapping one-call coverage, excavators may need to call several one-call systems to ensure that all underground utilities are informed of excavation activities. In addition, underground utility operators may need to join several one-call systems to ensure that they are informed of all excavation activities near the pipeline. These problems are alleviated if the state has a central telephone number for excavators to call for excavation activities, or if the one-call systems in the areas of overlapping coverage communicate with one another. Three commenters and an industry trade association stated that operators should not be required to join more than a single qualified one-call system for a given area. One commenter stated that if an excavator is required to make more than one call, there is no true one- call system. Two commenters thought the NPRM might prolong the problem by providing captive participation and funding for redundant systems. In addition, the commenters thought that captive participation and funding might create an incentive for the establishment of multiple qualified one-call systems in a given area, thus reducing the one-call system effectiveness. RSPA does not agree that multiple one-calls will be created for the same coverage area, or that the current problem of overlapping coverage will be prolonged, if an operator is required to join all qualified one-call centers that cover the operator's pipeline system. RSPA bases this on the fact that the number of states mandating one-call membership has been increasing while the problem of overlapping coverage has been decreasing. If the problem of overlapping one-call coverage were to increase with mandatory participation, as the commenters suggested, it should have already occurred in the states mandating one-call participation. This has not happened. RSPA does not see the need for an operator to join more than one qualified one-call system in overlapping coverage areas, if there is a central telephone number for excavators to call for excavation activities, or if the one-call systems in those areas communicate with one another. A central telephone number can forward an intent to excavate to multiple one-call systems#
Passage 7. This allows an operator to join a single one-call system and still receive all notices of intent to excavate that may affect the operator's pipeline. One-call systems that communicate notices of intent to excavate to other one-call systems also allow an operator to join a single one-call system and still receive all notices of intent to excavate that may affect the pipeline. Both situations end the need for an operator to join several one-call systems in areas of overlapping coverage. States that have overlapping one-call coverage are actively working to alleviate the problem. As an example, Texas has recently passed legislation that will create a central number for excavators to call. In addition, several of the states in the northwest that have small areas of overlapping coverage are currently referring excavators to a central number. Both alleviate the need for an operator to join more than a single one-call system covering its pipeline. The NPRM proposed that pipeline operators join a one-call system that ``assesses a participating pipeline operator a fee that is not disproportionate to the costs of the one-call system's coverage of the operator's pipeline.'' Two commenters recommended modifying the proposed section to read ``Assesses a participating pipeline operator a fee that is proportionate to the operator's utilization of the one-call service.'' RSPA has modified the proposed regulation in response to these recommendations. Additional Concerns on State Jurisdiction A state pipeline safety agency raised concern about a state's ability to impose one-call requirements on interstate pipeline operators. This rule should allay any concern about an interstate operator's required compliance with one-call damage prevention notification and marking requirements. Although a state cannot impose pipeline safety standards on an interstate operator, RSPA urges interstate operators to comply with any other requirements a one-call system imposes as a condition of membership.#
Passage 8On November 8 and 9, 1995, RSPA presented the NPRM and the comments received on the NPRM to its two pipeline advisory committees, the Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC). On November 8, 1995, the THLPSSC discussed and unanimously supported mandating pipeline operator participation in qualified one- call systems with one minor modification to the wording used in the NPRM. The THLPSSC recommended that RSPA modify Sec. 195.442(b)(2)(iii) to remove the double negative. The suggested wording reads ``Assesses a participating pipeline operator a fee that is proportionate to the costs of the one-call system's coverage of the operator's pipeline.'' The THLPSSC also discussed the problem of overlapping one-call coverage and the possible actions that could be taken in these areas. The THLPSSC discussed requiring a pipeline operator to only join one qualified one-call system in areas of overlapping one-call coverage, on the condition that the operator's entire system in the overlapping area be covered by the single one-call system. RSPA has studied the possible consequences of this action and believes there is a safety issue. If an operator joins a single one- call system in an overlapping coverage area, an excavator could call the one-call system the operator has not joined. The excavator may not understand that another call has to be made to obtain the location of#
Passage 9additional underground facilities covered by the other one-call system. The excavator may believe it is safe to dig in the area when, in fact, there is a pipeline or other underground utility in the area. This could lead to a hazardous liquid release, explosion, or possible death. Therefore, RSPA will not pursue this action. On November 9, 1995, the TPSSC voted six to five in favor of the proposed regulation and several modifications. Those opposed were concerned with the recommendation to modify Sec. 198.39, made by other committee members, and not with the overall intent of the NPRM. This recommendation is discussed below in further detail. The TPSSC recommended that pipeline operators only participate in one qualified one-call system in areas of overlapping one-call coverage. In conjunction with that recommendation, the TPSSC proposed that RSPA modify, through a new NPRM, Sec. 198.39, ``Qualifications for operation of one-call notification system.'' The proposed modification would require a one-call system to communicate with all other one-call systems in areas of overlapping coverage before that one-call system could be considered qualified. The TPSSC recommended that the modification to Sec. 198.39 be done in conjunction with the requirement that pipeline operators need only join one qualified one-call system in areas of overlapping jurisdiction. The TPSSC recognized that RSPA could not modify part 198 in this final rule and some members were concerned that implementing the actions at different times would cause undue problems. Their six to five vote reflects these concerns. The TPSSC also followed the THLPSSC's recommended modification of Sec. 195.442(b)(2)(iii) by unanimously concurring that Sec. 192.614(b)(2)(iii) be modified to remove the double negative. The recommended wording would read ``Assesses a participating pipeline operator a fee that is proportionate to the costs of the one-call system's coverage of the operator's pipeline.''#
Passage 10RSPA has adopted the TPSSC's and THLPSSC's recommended wording of Secs. 192.614(b)(2)(iii) and 195.442(b)(2)(iii) and has removed the double negative. RSPA has also clarified Sec. 192.614(e) to ensure that municipal gas systems are included in the damage prevention regulations. RSPA has not adopted the recommendation to require pipeline operators to participate in only one qualified one-call system in areas of overlapping one-call coverage. RSPA has not adopted this recommendation due to the possible safety issues. However, RSPA does not see the need for a pipeline operator to join more than a single one-call system if there is a central telephone number for excavators to call, or if the one-call systems in the overlapping coverage area communicate with each other. RSPA is taking into consideration the TPSSC's recommendation to modify Sec. 198.37 to require one-call systems to communicate with one another in areas of overlapping one- call coverage before they are considered a qualified one-call system. A new NPRM will be issued if RSPA pursues the recommendation. Executive Order 12866 and DOT Regulatory Policies and Procedures#
Passage 11This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not subject to review by the Office of Management and Budget. The final rule is also not considered significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). The final rule requires that operators of interstate and intrastate pipelines participate in qualified one-call systems. It requires less stringent standards for participation of small entities, including master meter operators, whose primary activity does not include the transportation of gas. Presently, approximately 75 one-call systems operate in 49 states and the District of Columbia. These one-call systems perform many of the duties required under parts 192 and 195 for an excavation damage prevention program. Many pipeline operators already participate in these one-call systems on a voluntary or state-mandated basis. Forty-seven states and the District of Columbia have damage prevention laws that, to varying degrees, govern the activities performed by excavators and persons locating and temporarily marking underground facilities. Twenty-eight states and the District of Columbia mandate one-call participation by most commercial underground facility owners and operators. Therefore, many of the operators that this final rule covers already have some form of an excavation damage prevention program and should incur little or no additional cost as a result of this final rule. Based on available data and discussions with the American Gas Association, the American Public Works Association, and One-Call Systems International, the cost for a pipeline operator to participate in a qualified one-call system should be approximately the same or slightly less than if the operator performed the excavation damage prevention duties independently. Therefore, operators that are required to meet the current damage prevention program requirements, but who have not joined a qualified one-call system, should incur little or no additional cost. Operators in areas with no qualified one-call systems would continue to receive and record notifications of planned excavation activities with their own personnel and would incur no additional cost. However, operators would be required to join a qualified one-call system once one was established. 49 U.S.C.#
Passage 1260102(b)(3) requires RSPA's technical advisory committees to serve as peer review panels for the cost/benefit analysis that accompanies each rulemaking. The THLPSSC and the TPSSC have reviewed the cost/benefit information contained in this final rule and three- fourths of the members have voted to forego a formal analysis and report on the merits of the data, the methods used in the cost/benefit analysis, and any recommended options relating to the cost/benefit analysis. Based on the above, this rule is not considered to be significant under Executive Order 12866. A complete text of the regulatory evaluation is available for review in this docket. The final rule has been analyzed in accordance with the principles and criteria in Executive Order 12612 (``Federalism''), and does not have sufficient federalism impacts to warrant the preparation of a federalism assessment. This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs or $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective to the rule. This final rule extends the excavation damage prevention program requirements to petroleum gas systems subject to Sec. 192.11 and to small gas systems whose primary activity includes the transportation of gas. It also limits the current exemption for#
Passage 13operators of gas systems whose primary activity does not include the transportation of gas. However, the final rule is sensitive to the minimum resources of these small operators. Operators whose primary activity does not include the transportation of gas, such as master meter operators, are exempted from the requirement that the damage prevention program be written. This is one of the most costly parts of this regulation. These operators are exempted from the requirements to identify persons who normally engage in excavation activities in the area in which the pipeline is located, and to provide actual notification to those identified persons on the damage prevention program's existence and purpose and on how to learn the location of underground pipelines before excavation activities begin. Because little excavation activity occurs in areas where master meter operators operate, the cost of joining a one-call system for these small operators should be minimal. Based on these facts, I certify that this final rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This certification is subject to modification as a result of a review of comments received in response to this final rule.#
Passage 14This final rule will require no additional increase in the current information collection burden requirements for gas pipeline operators and hazardous liquid and carbon dioxide operators. Twenty-eight states and the District of Columbia mandate one-call participation by most commercial underground facility owners and operators. In addition, many operators already voluntarily participate in qualified one-call systems. Therefore, many of the operators that this final rule covers already participate in qualified one-call systems and should incur no additional paperwork burden as a result of this final rule. Based on available data and discussions with One-Call Systems International, the paperwork burden for a pipeline operator to participate in a qualified one-call system should be less than if the operator performed the excavation damage prevention duties independently. Therefore, operators that are required to meet the current damage prevention program requirements, but who have not joined a qualified one-call system, should incur little or no additional paperwork burden. Operators in areas with no qualified one-call systems would continue to receive and record notifications of planned excavation activities with their own personnel and would incur no additional paperwork burden as a result of this final rule. Pipeline safety, Reporting and recordkeeping requirements. Anhydrous ammonia, Carbon dioxide, Petroleum, Pipeline safety, Reporting and recordkeeping requirements. In consideration of the foregoing, RSPA amends 49 CFR parts 192 and 195 as follows: 1. The authority citation for part 192 continues to read as follows: Authority: 49 U.S.C. 5102, 60102, 60104, 60108, 60109, 60110, 60113, 60118; 49 CFR 1.53. 2. Section 192.614 is amended by revising paragraph (a), by removing paragraph (c)(4), by redesignating paragraphs (b) and (c) as (c) and (d), by revising the introductory text of newly redesignated (c)(2), and by adding paragraphs (b) and (e) as follows:#
Passage 15(a) Except as provided in paragraphs (d) and (e) of this section, each operator of a buried pipeline must carry out, in accordance with this section, a written program to prevent damage to that pipeline from excavation activities. For the purpose of this section, the term ``excavation activities'' includes excavation, blasting, boring, tunneling, backfilling, the removal of aboveground structures by either explosive or mechanical means, and other earthmoving operations. (b) An operator may comply with any of the requirements of paragraph (c) of this section through participation in a public service program, such as a one-call system, but such participation does not relieve the operator of responsibility for compliance with this section. However, an operator must perform the duties of paragraph (c)(3) of this section through participation in a one-call system, if that one-call system is a qualified one-call system. In areas that are covered by more than one qualified one-call system, an operator need only join one of the qualified one-call systems if there is a central telephone number for excavators to call for excavation activities, or if the one-call systems in those areas communicate with one another. An operator's pipeline system must be covered by a qualified one-call system where there is one in place. For the purpose of this section, a one-call system is considered a ``qualified one-call system'' if it meets the requirements of section (b)(1) or (b)(2) of this section. (1) The state has adopted a one-call damage prevention program under Sec. 198.37 of this chapter; or (2) The one-call system: (i) Is operated in accordance with Sec. 198.39 of this chapter; (ii) Provides a pipeline operator an opportunity similar to a voluntary participant to have a part in management responsibilities; and (iii) Assesses a participating pipeline operator a fee that is proportionate to the costs of the one-call system's coverage of the operator's pipeline. (c) * * * (2) Provides for notification of the public in the vicinity of the pipeline and actual notification of the persons identified in paragraph (c)(1) of this section of the following as often as needed to make them aware of the damage prevention program: * * * * * (e) Pipelines operated by persons other than municipalities (including operators of master meters) whose primary activity does not include the transpor#
Passage 16tation of gas need not comply with the following: (1) The requirement of paragraph (a) of this section that the damage prevention program be written; and (2) The requirements of paragraphs (c)(1) and (c)(2) of this section. 3. The authority citation for part 195 continues to read as follows: Authority: 49 U.S.C. 60102, 60104, 60108, 60109; 49 CFR 1.53. 4. Section 195.442 is amended by revising paragraph (a), by redesignating paragraphs (b) and (c) as (c) and (d), by revising the introductory text of newly redesignated (c)(2), and adding paragraph (b) to read as follows: (a) Except as provided in paragraph (d) of this section, each operator of a buried pipeline must carry out, in accordance with this section, a written program to prevent damage to that pipeline from excavation activities. For the purpose of this section, the term ``excavation activities'' includes excavation, blasting, boring, tunneling, backfilling, the removal of aboveground structures by either explosive or mechanical means, and other earthmoving operations.#
Passage 17(b) An operator may comply with any of the requirements of paragraph (c) of this section through participation in a public service program, such as a one-call system, but such participation does not relieve the operator of responsibility for compliance with this section. However, an operator must perform the duties of paragraph (c)(3) of this section through participation in a one-call system, if that one-call system is a qualified one-call system. In areas that are covered by more than one qualified one-call system, an operator need only join one of the qualified one-call systems if there is a central telephone number for excavators to call for excavation activities, or if the one-call systems in those areas communicate with one another. An operator's pipeline system must be covered by a qualified one-call system where there is one in place. For the purposes of this section, a one-call system is considered a ``qualified one-call system'' if it meets the requirements of section (b)(1) or (b)(2) or this section. (1) The state has adopted a one-call damage prevention program under Sec. 198.37 of this chapter; or (2) The one-call system: (i) Is operated in accordance with Sec. 198.39 of this chapter; (ii) Provides a pipeline operator an opportunity similar to a voluntary participant to have a part in management responsibilities; and (iii) Assesses a participating pipeline operator a fee that is proportionate to the costs of the one-call system's coverage of the operator's pipeline. (c) * * * (2) Provides for notification of the public in the vicinity of the pipeline and actual notification of persons identified in paragraph (c)(1) of this section of the following as often as needed to make them aware of the damage prevention program: * * * * * Issued in Washington, D.C. on November 13, 1997. Kelley S. Coyner, Acting Administrator. [FR Doc. 97-30290 Filed 11-18-97; 8:45 am] BILLING CODE 4910-60-P#
This material provides agency context. It does not replace binding regulatory text, and its legal effect depends on the underlying authority and facts.