PSC-42-11-00022-P Amendments to 16 NYCRR Chapter VII, Subchapter F, Part 753
10/19/11 N.Y. St. Reg. PSC-42-11-00022-P
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 42
October 19, 2011
RULE MAKING ACTIVITIES
PUBLIC SERVICE COMMISSION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. PSC-42-11-00022-P
Amendments to 16 NYCRR Chapter VII, Subchapter F, Part 753
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend Part 753 of Title 16 NYCRR.
Statutory authority:
Public Service Law, sections 4(1), 65(1) and 119-b(2)
Subject:
Amendments to 16 NYCRR Chapter VII, Subchapter F, Part 753.
Purpose:
To consider proposed amendments to 16 NYCRR Chapter VII, Subchapter F, Part 753.
Text of proposed rule:
1. That the provisions of Section 202(1) of the State Administrative Procedure Act and Section 101-a(2) of the Executive Law having been complied with, Part 753 of Chapter VII of Title 16 of the Official Compilation of Codes, Rules and Regulations of the State of New York is amended, effective upon publication of a Notice of Adoption in the State Register, as follows (Deletions are bracketed; new material is italicized):
SUBCHAPTER F - Miscellaneous.
PART 753
PROTECTION OF UNDERGROUND FACILITIES
(Statutory Authority: Public Service Law § 119-b and
General Business Law Article 36)
753-1.2 Definitions.
(a) Automated Positive Response (APR) system: a system established by the one-call notification system to furnish a single point of contact between member operators and excavators for the purpose of communicating the status of an excavation location request as provided by the member operators.
(b)
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753-3.3 Commencement of excavation or demolition.
(d) Where available through the one-call notification system, the excavator shall utilize the Automated Positive Response (APR) system in order to obtain the response(s) of the operators that were notified by the one-call notification system.
753-3.14 Emergency requirements.
(b) Immediately notify [the local police and fire departments]911 and the operator of the affected facility of the exact location, nature of the emergency and of the underground facility which is affected.
753-4.5 Operator's response to notice
(a) Prior to the stated commencement date of the excavation or demolition work as stated in the recorded notice, the operator shall make a reasonable attempt to inform the excavator[directly], by means of an Automated Positive Response (APR) system, where available, or by means of direct communications with the excavator, where APR is not available, that either:
753-4.6 Locating underground facilities.
(c)...
(3) By any other means as mutually agreed to by the operator and excavator, including but not limited to written descriptions, photographs [and]or verbal instructions. Such agreement shall be provided in writing to the excavator upon his or her request
(d) Provide an Automated Positive Response (APR) system for mandatory use by excavators and member operators, where determined by the one-call notification system to be technologically and economically practical.
Text of proposed rule and any required statements and analyses may be obtained by filing a Document Request Form (F-96) located on our website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 486-2655, email: leann_ayer@dps.state.ny.us
Data, views or arguments may be submitted to:
Jaclyn A. Brilling, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 474-6530, email: Secretary@dps.state.ny.us
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
This rule is being proposed as a consensus rule because, in accordance with State Administrative Procedure Act § 102(11)(c), it makes technical changes and is otherwise non-controversial.
Subdivision 3.3 of section 753 of New York Code of Rules and Regulations (NYCRR) currently requires that, prior to proceeding with excavation or demolition, an excavator must receive notification from utility operators relative to the presence of any underground facilities in the work area and whether they have been marked (in response to notice by the excavator to the one-call system of planned excavation or demolition in accordance with subdivisions 3.1 and 3.2 of section 753). The current system whereby each operator must directly contact the excavator has several weaknesses, such as: (1) operators have several choices of how to provide positive response to the excavator (phone, fax, or e-mail) and the excavator may not know in which form the response will be received, (2) when operators respond by phone, the excavator does not have a "hard-copy" record that positive response was received, (3) the excavator needs to create its own list of operators that have and have not responded, (4) when the response is made by fax there may be issues such as the receiving fax not having been turned on, being out of ink, out of paper, etc., (5) when the response is made by phone it may be to an answering machine that malfunctions, cuts-out before the message is complete, or is accidentally erased before the intended person receives the message. The proposed change to this section establishes an Automated Positive Response (APR) system, implemented by Dig Safely New York, that facilitates interaction between utility operators and excavators by establishing a central repository for the response to be provided by utility operators to excavators, and for excavators to check on the status of their markout requests.
Subdivision 3.14 of section 753 currently requires that an excavator immediately notify the local police and fire departments, as well as the operator of the affected facility, of the exact location, nature of the emergency, and of the underground facility which is affected. This language was developed prior to the widespread use of 911. The proposed language reduces to one 911 call the existing requirement that both the fire and police departments be notified. Emergencies are readily addressed by the 911 system and the appropriate first responders will be expeditiously contacted.
Subdivision 4.7 of section 753 specifies the color code to be used by facility locators to mark locations of the various utilities. To bring section 753 into conformance with the American Public Works Association recommendation and Common Ground Alliance best practices, the proposed language specifies that the color purple include radioactive materials.
Subdivision 4.6(c)(3) of section 753 currently may be read to require by use of the word "and" that written descriptions, photographs and verbal instructions must all be utilized as alternative means of designating the location of buried facilities if mutually agreed to. The proposed language replaces the word "and" with "or" to make clear that only one method need be utilized.
The proposed rule will improve the communication between utility operators and excavators resulting in reduced uncertainty of the excavator with regard to which responses have been received and increase utility operators' efficiency in notifying excavators of underground facilities. It also makes technical and updating changes which are non-controversial. Staff has discussed these proposed revisions to 16 NYCRR Part 753 with various stake holders including excavators, utility operators and one-call systems, and has received positive comments. Based on communications with stakeholders, no person is likely to object to the adoption of the rule as written. In accordance with the provisions of the State Administrative Procedure Act (SAPA) § 202(1)(b)(i), this therefore should be considered a consensus rule making.
Job Impact Statement
The Department of Public Service (DPS) projects that there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this proposed rule change. This proposed rule change simply enables Dig Safely New York to implement a system called Automated Positive Response (APR), to facilitate through a central information repository, the process by which utility operators respond to excavators to advise them of whether underground facilities are present within a proposed excavation site and makes other minor changes to 16 NYCRR Part 753, Protection of Underground Facilities. Since nothing in this proposed rule change will create any adverse impacts on jobs or employment opportunities in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Job Impact Statement is not required and therefore one has not been prepared.
