House

Bill 454
2016 Freedom Index Score (-2)
Analyst: Wayne Hoffman
Date: February 22, 2016

ANALYSTS NOTE: House Bill 454 would create a new regulatory board and oversight structure for
underground facilities (pipelines and electric lines) under the contention that failure by Idaho to act
would put the state's industries under the thumb of the federal government. The proponents of the bill
make an accurate assessment, but there are other reasons lawmakers should be troubled by the
proposal, as it applies to the Freedom Indexs analysis of the bill.

Under congressional legislation and supporting federal regulations, Idaho's industries would be subject to
federal oversight if changes are not made to the state's system for protecting underground facilities.
Specifically, 49 USC 6015 says, in part, "the Secretary of Transportation may not prescribe or enforce
safety standards and practices for an intrastate pipeline facility or intrastate pipeline transportation to
the extent that the safety standards and practices are regulated by a State authority (including a
municipality if the standards and practices apply to intrastate gas pipeline transportation) that submits to
the Secretary annually a certification for the facilities and transportation that complies with subsections
(b) and (c) of this section."

Through federal regulations in 49 CFR 198, the federal government provides GUIDANCE AS TO HOW
STATES CAN REGULATE SUCH SAFETY STANDARDS AND PRACTICES:
(1) Does the State have the authority to enforce its State excavation damage prevention law using civil
penalties and other appropriate sanctions for violations?
(2) Has the State designated a State agency or other body as the authority responsible for enforcement of
the State excavation damage prevention law?
(3) Is the State assessing civil penalties 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?
(4) 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?
(5) 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?
(6) At a minimum, do the State's excavation damage prevention requirements include the following:
(i) 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.
(ii) Excavators may not engage in excavation activity in disregard of the marked location of a pipeline
facility as established by a pipeline operator.
(iii) An excavator who causes damage to a pipeline facility

On the surface, it might appear an appropriate exercise of state government authority to attempt to
limit the federal government's oversight of the state's industries. However, this is an oft-repeated tale of

federal excess: Congress passes a law and requires states to take certain actions, alleging that failure to
act will result in certain consequences. State governments must resist federal bullying and reassert their
roles under the U.S. Constitutions Tenth Amendment. Doing so is never easy. Supporters of H454 have
come up with a way to comply with the federal fiat believing it to be the better of two choices. But,
compliance also weakens a state's stand against other incursions into other industries OVER WHICH
Congress may, one day, wish to assert influence.
Point No. 1 Does it create, expand, or enlarge any agency, board, program, function, or activity of
government? Conversely, does it eliminate or curtail the size or scope of government?

ANALYSIS: The bill creates a new regulatory board, the Damage Prevention Board, with members to be
appointed by the governor. Supporters of the bill contend this is preferable to giving state oversight
authority to a regulatory agency, such as the Division of Building Safety. That may seem true, but
regulatory boards are regulatory boards, and are creatures of government with governmental
authorities and power. (-1)

Point No. 12) Does it violate the principles of federalism by increasing federal authority, yielding to
federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules?
Examples include citing federal code without noting as it is written on a certain date, using state
resources to enforce federal law, and refusing to support and uphold the Tenth Amendment.
Conversely, does it restore or uphold the principles of federalism?

ANALYSIS: As stated, the bill accepts the notion that the federal government can coerce states into
adopting federal policies with the usual "if-you-don't-we-will" intimidation. This is seen in the 2013 fight
over the state health insurance exchange and this year with regard to appraisal management
companies. State GOVERNMENTs have the responsibility to push back against unauthorized
encroachment into state jurisdictions. (-1)