HB 0789

CS

CHAMBER ACTION

1	The Civil Justice Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to damage prevention and safety for
7	underground facilities; amending s. 556.101, F.S.;
8	providing legislative intent that Sunshine State One-Call
9	of Florida, Inc., is not required or permitted to locate
10	or mark underground facilities; revising purposes of the
11	Underground Facility Damage Prevention and Safety Act;
12	amending s. 556.102, F.S.; correcting a reference;
13	redefining the term "member operator" to remove an
14	exception for a small municipality that elects not to
15	participate in the notification system; amending ss.
16	556.103 and 556.104, F.S.; deleting provisions exempting a
17	small city from membership in the Sunshine State One-Call
18	of Florida, Inc.; amending s. 556.105, F.S.; requiring
19	that specified information be placed in the excavation
20	notification system; providing an exception for underwater
21	excavations; providing that the information is valid for
22	30 calendar days; requiring that a notification number
23	assigned to an excavator be provided to a law enforcement
24	officer, government code inspector, or code enforcement
25	officer upon request; requiring that a member operator
26	respond to the system within a specified time indicating
27	the status of its facility protection operations;
28	requiring the corporation to establish a communication
29	system between member operators and excavators; requiring
30	an excavator to verify the system's positive responses
31	before beginning excavation; requiring operators to use a
32	specified color-code manual; amending s. 556.106, F.S.;
33	providing that the notification system has no duty to and
34	may not mark or locate underground facilities; providing
35	that a person has no right of recovery against the
36	notification system for failing to mark or locate
37	underground facilities; providing that the system is not
38	liable for the failure of a member operator to comply with
39	the requirements of the act; amending s. 556.107, F.S.;
40	correcting cross-references; providing for the
41	distribution of civil penalties; revising procedures for
42	disposition of citations; authorizing the corporation to
43	retain legal counsel to represent the corporation in
44	certain legal proceedings; amending s. 556.108, F.S.;
45	revising provisions that exempt excavation or demolition
46	by the owner of residential property from specified
47	notification requirements to exclude certain property that
48	is subdivided or to be subdivided; providing that certain
49	excavations are exempt from mandatory location
50	notification if mechanized equipment is not used;
51	exempting pest control services under certain
52	circumstances; providing an effective date.
53
54	Be It Enacted by the Legislature of the State of Florida:
55
56	Section 1.  Section 556.101, Florida Statutes, is amended
57	to read:
58	556.101  Short title; legislative intent.--
59	(1)  This chapter act may be cited as the "Underground
60	Facility Damage Prevention and Safety Act."
61	(2)  It is the intent of the Legislature to provide access
62	for excavating contractors and the public to provide
63	notification to the system of their intent to engage in
64	excavation or demolition. This notification system shall provide
65	the member operators an opportunity to identify and locate their
66	underground facilities. Under this notification system, Sunshine
67	State One-Call of Florida, Inc., is not required or permitted to
68	locate or mark underground facilities.
69	(3)  It is the purpose of this chapter act to:
70	(a)  Aid the public by preventing injury to persons or
71	property and the interruption of services resulting from damage
72	to an underground facility caused by excavation or demolition
73	operations.
74	(b)  Create a not-for-profit corporation comprised of
75	operators of underground facilities in this state to administer
76	the provisions of this chapter act.
77	(c)  Fund the cost of administration through contributions
78	from the member operators for services provided to the member
79	operators and from charges made to others for services requested
80	and provided, such as record searches, education or training,
81	and damage prevention activities.
82	(d)  Reserve to the state the power to regulate any subject
83	matter specifically addressed in this chapter act.
84	(e)  Permit any local law enforcement officer, local
85	government code inspector, or code enforcement officer or
86	permitting agency inspector to enforce this chapter act without
87	the need to incorporate the provisions of this chapter act into
88	any local code or ordinance.
89	(f)  Foster the awareness of federal laws and regulations
90	that promote safety with respect to underground facilities,
91	including, but not limited to, the Federal Pipeline Safety Act
92	of 1968, as amended, the Pipeline Safety Improvement Act of
93	2002, OSHA Standard 1926.651, and the National Electric Safety
94	Code, ANSI C-2, by requiring and facilitating the advance notice
95	of activities by those who engage in excavation or demolition
96	operations.
97	(4)  It is not the purpose of this chapter act to amend or
98	void any permit issued by a state agency for placement or
99	maintenance of facilities in its right-of-way.
100	Section 2.  Subsection (8) of section 556.102, Florida
101	Statutes, is amended to read:
102	556.102  Definitions.--As used in this act:
103	(8)  "Member operator" means any person who furnishes or
104	transports materials or services by means of an underground
105	facility except a small municipality that has elected not to
106	participate in the one-call notification system in the manner
107	set forth in s. 556.103(1).
108	Section 3.  Subsection (1) of section 556.103, Florida
109	Statutes, is amended to read:
110	556.103  Creation of the corporation; establishment of the
111	board of directors; authority of the board; annual report.--
112	(1)  The "Sunshine State One-Call of Florida, Inc." is
113	hereby created as a not-for-profit corporation. Each operator of
114	an underground facility in this state shall be a member of the
115	corporation and shall use and participate in the system, except
116	that a small city as defined in s. 120.52 may elect by January
117	1, 1998, not to participate in the system until January 1, 2003,
118	through a written notification identifying any reasons for
119	declining membership. The corporation shall be formed by June 1,
120	1993. The corporation shall administer the provisions of this
121	chapter act. The corporation shall exercise its powers through a
122	board of directors established pursuant to this section.
123	Section 4.  Section 556.104, Florida Statutes, is amended
124	to read:
125	556.104  Free-access notification system.--The corporation
126	shall maintain a free-access notification system. Any person who
127	furnishes or transports materials or services by means of an
128	underground facility in this state shall participate as a member
129	operator of the system except that a small city as defined in s.
130	120.52 may elect not to participate in the system in the manner
131	set forth in s. 556.103(1). The purpose of the system is to
132	receive notification of planned excavation or demolition
133	activities and to notify member operators of the such planned
134	excavation or demolition activities. The system shall provide a
135	single toll-free telephone number within this state which
136	excavators can use to notify member operators of planned
137	excavation or demolition activities, and the system may also
138	provide additional modes of access at no cost to the user.
139	Section 5.  Section 556.105, Florida Statutes, is amended
140	to read:
141	556.105  Procedures.--
142	(1)(a)  Not less than 2 nor more than 5 full business days
143	before beginning any excavation or demolition, except an
144	excavation beneath the waters of the state, an excavator shall
145	provide the following information through the system:
146	1.  The name of the individual who provided notification
147	and the name, address, including the street address, city,
148	state, zip code, and telephone number of her or his employer.
149	2.  The name and telephone number of the representative for
150	the excavator, and a valid electronic address to facilitate a
151	positive response by the system should be provided, if
152	available.
153	3.  The county, the city or closest city, and the street
154	address or the closest street, road, or intersection to the
155	location where the excavation or demolition is to be performed,
156	and the construction limits of the excavation or demolition.
157	4.  The commencement date and anticipated duration of the
158	excavation or demolition.
159	5.  Whether machinery will be used for the excavation or
160	demolition.
161	6.  The person or entity for whom the work is to be done.
162	7.  The type of work to be done.
163	8.  The approximate depth of the excavation.
164	(b)  The excavator shall provide the such information by
165	notifying the system through its free-access notification system
166	during business hours, as determined by the corporation, or by
167	such other method as authorized by the corporation. Any
168	notification received by the system at any time other than
169	during business hours shall be considered to be received at the
170	beginning of the next business day.
171	(c)  Information provided by an excavator is shall be
172	considered valid for 30 a period of 20 calendar days after the
173	each date such information is provided to the system. In
174	computing the period for which information furnished is
175	considered valid, the date the notice is provided is shall not
176	be counted, but the last day of the such period shall be counted
177	unless it is a Saturday, Sunday, or a legal holiday, in which
178	event, the period runs shall run until the end of the next day
179	that which is not a Saturday, Sunday, or a legal holiday.
180	(2)  Each notification by means of the system shall be
181	recorded to document compliance with this chapter act. Such
182	record may be made by means of electronic, mechanical, or any
183	other method of all incoming and outgoing wire and oral
184	communications concerning location requests in compliance with
185	chapter 934. The Such records shall be kept for a period of 5
186	years and, upon written request, shall be available to the
187	excavator making the request, the member operator intended to
188	receive the request, and their agents. However, custody of the
189	records may shall not be transferred from the system except
190	under subpoena.
191	(3)  The system shall provide the person who provided
192	notification with the names of the member operators who shall
193	will be advised of the notification and a notification number
194	that which specifies the date and time of the notification.
195	(4)  The notification number provided to the excavator
196	under this section shall be provided to any law enforcement
197	officer, government code inspector, or code enforcement officer
198	upon request.
199	(5)(4)  All member operators within the defined area of a
200	proposed excavation or demolition shall be promptly notified
201	through the system, except that member operators with state-
202	owned underground facilities located within the right-of-way of
203	a state highway need not be notified of excavation or demolition
204	activities and are under no obligation to mark or locate the
205	such facilities.
206	(a)  When an excavation site cannot be described in
207	information provided under subparagraph (1)(a)3. with sufficient
208	particularity to enable the member operator to ascertain the
209	excavation site, and if the excavator and member operator have
210	not mutually agreed otherwise, the excavator shall premark the
211	proposed area of the excavation before a member operator is
212	required to identify the horizontal route of its underground
213	facilities in the proximity of any excavation. However,
214	premarking is not required for any excavation that is over 500
215	feet in length and is not required where the premarking could
216	reasonably interfere with traffic or pedestrian control.
217	(b)  If a member operator determines that a proposed
218	excavation or demolition is in proximity to or in conflict with
219	an underground facility of the member operator, except a
220	facility beneath the waters of the state, which is governed by
221	paragraph (c), the member operator shall identify the horizontal
222	route by marking to within 24 inches from the outer edge of
223	either side of the underground facility by the use of stakes,
224	paint, flags, or other suitable means within 2 full business
225	days after the time the notification is received under
226	subsection (1). If the member operator is unable to respond
227	within such time, the member operator shall communicate with the
228	person making the request and negotiate a new schedule and time
229	that is agreeable to, and should not unreasonably delay, the
230	excavator.
231	(c)  If a member operator determines that a proposed
232	excavation is in proximity to or in conflict with an underground
233	facility of the member operator beneath the waters of the state,
234	the member operator shall identify the estimated horizontal
235	route of the underground facility, within 10 business days,
236	using marking buoys or other suitable devices, unless directed
237	otherwise by an agency having jurisdiction over the waters of
238	the state under which the member operator's underground facility
239	is located.
240	(d)  When excavation is to take place within a tolerance
241	zone, an excavator shall use increased caution to protect
242	underground facilities. The protection requires hand digging,
243	pot holing, soft digging, vacuum excavation methods, or other
244	similar procedures to identify underground facilities. Any use
245	of mechanized equipment within the tolerance zone must be
246	supervised by the excavator.
247	(6)(a)(5)(a)  An excavator shall avoid excavation in the
248	area described in the notice given under pursuant to subsection
249	(1) until each member operator underground facility has been
250	marked and located or until the excavator has been notified that
251	no member operator has underground facilities in the area
252	described in the notice, or for the time allowed for markings
253	set forth in paragraphs (5)(b) (4)(b) and (c), whichever occurs
254	first. If a member operator has not located and marked its
255	underground facilities within the time allowed for marking set
256	forth in paragraphs (5)(b) (4)(b) and (c), the excavator may
257	proceed with the excavation, if provided the excavator does so
258	with reasonable care, and if provided, further, that detection
259	equipment or other acceptable means to locate underground
260	facilities are used.
261	(b)  An excavator may shall not demolish in the area
262	described in the notice given under pursuant to subsection (1)
263	until all member operator underground facilities have been
264	marked and located, or removed.
265	(7)(a)(6)(a)  A member operator that states that it does
266	not have accurate information concerning the exact location of
267	its underground facilities is exempt from the requirements of
268	paragraphs (5)(b) (4)(b) and (c), but shall provide the best
269	available information to the excavator in order to comply with
270	the requirements of this section. An excavator is not liable for
271	any damage to an underground facility under the exemption in
272	this subsection if the excavation or demolition is performed
273	with reasonable care and detection equipment or other acceptable
274	means to locate underground facilities are used.
275	(b)  A member operator may not exercise the exemption
276	provided by this subsection if the member operator has
277	underground facilities that have not been taken out of service
278	and that are locatable using available designating technologies
279	to locate underground facilities.
280	(8)(a)(7)(a)  If extraordinary circumstances exist, a
281	member operator shall notify the system of the member operator's
282	inability to comply with this section. For the purposes of this
283	section, the term "extraordinary circumstances" means
284	circumstances other than normal operating conditions that which
285	exist and make it impractical for a member operator to comply
286	with the provisions of this chapter act. After the system has
287	received notification of a member operator's inability to
288	comply, the system shall make that information known to
289	excavators who subsequently notify the system of an intent to
290	excavate. The member operator is relieved of responsibility for
291	compliance under the law during the period that the
292	extraordinary circumstances exist and shall promptly notify the
293	system when the extraordinary circumstances cease to exist.
294	(b)  During the period when extraordinary circumstances
295	exist, the system shall remain available during business hours
296	to provide information to governmental agencies, member
297	operators affected by the extraordinary circumstances, and
298	member operators who can provide relief to the affected parties,
299	unless the system itself has been adversely affected by
300	extraordinary circumstances.
301	(9)(a)  After receiving notification from the system, a
302	member operator shall provide a positive response to the system
303	within 2 full business days, or 10 such days for an underwater
304	excavation, indicating the status of operations to protect the
305	facility.
306	(8)(a)  If a member operator determines that the excavation
307	or demolition is not near an existing underground facility of
308	the member operator, the member operator shall notify the
309	excavator within 2 full business days after the time of the
310	notification to the system that no conflict exists and that the
311	excavation or demolition area is clear. An excavator who has
312	knowledge of the existence of an underground facility of a
313	member operator in the area is responsible for contacting the
314	member operator if a facility is not marked.
315	(b)  The system shall establish and maintain a process to
316	facilitate a positive-response communication between member
317	operators and excavators. The system is exempt from any
318	requirement to initiate a positive response to an excavator when
319	an excavator does not provide a valid electronic address to
320	facilitate a positive response by the system.
321	(c)  An excavator shall verify the system's positive
322	responses before beginning excavation. If an excavator knows
323	that an existing underground facility of a member operator is in
324	the area, the excavator must contact the member operator if the
325	facility is not marked and a positive response has not been
326	received by the system. The system shall implement procedures
327	for positive response by January 1, 2004.
328	(10)(9)  A member operator shall use the "Uniform Color
329	Code for Utilities" recommended guidelines for uniform temporary
330	marking of underground facilities as approved by the Utility
331	Location and Coordinating Council of the American Public Works
332	Association when marking the horizontal route of any underground
333	facility of the operator.
334	(11)(10)  Before Prior to or during excavation or
335	demolition, if the marking of the horizontal route of any
336	facility is removed or is no longer visible, the excavator shall
337	stop excavation or demolition activities in the vicinity of the
338	facility and shall notify the system to have the route remarked.
339	(12)(11)  If any contact with or damage to any pipe, cable,
340	or its protective covering, or any other underground facility
341	occurs, the excavator causing the contact or damage shall
342	immediately notify the member operator. Upon receiving notice,
343	the member operator shall send personnel to the location as soon
344	as possible to effect temporary or permanent repair of the
345	contact or damage. Until such time as the contact or damage has
346	been repaired, the excavator shall cease excavation or
347	demolition activities that may cause further damage to such
348	underground facility.
349	Section 6.  Subsection (2) of section 556.106, Florida
350	Statutes, is amended, present subsection (6) is redesignated as
351	subsection (7) and amended, and a new subsection (6) is added to
352	that section, to read:
353	556.106  Liability of the member operator, excavator, and
354	system.--
355	(2)(a)  If a In the event any person violates s. 556.105(1)
356	or (6)(5), and subsequently, whether by himself or herself or
357	through the person's employees, contractors, subcontractors, or
358	agents, performs an excavation or demolition that which damages
359	an underground facility of a member operator, it is shall be
360	rebuttably presumed that the such person was negligent. The Such
361	person, if found liable, is shall be liable for the total sum of
362	the losses to all member operators involved as those costs are
363	normally computed. Any damage for loss of revenue and loss of
364	use may shall not exceed $500,000 per affected underground
365	facility, except that revenues lost by a governmental member
366	operator whose, which revenues are used to support payments on
367	principal and interest on bonds may, shall not be limited. Any
368	liability of the state and its agencies and its subdivisions
369	which arises out of this chapter is shall be subject to the
370	provisions of s. 768.28.
371	(b)  If any excavator fails to discharge a duty imposed by
372	the provisions of this chapter act, the such excavator, if found
373	liable, is shall be liable for the total sum of the losses to
374	all parties involved as those costs are normally computed. Any
375	damage for loss of revenue and loss of use may shall not exceed
376	$500,000 per affected underground facility, except that revenues
377	lost by a governmental member operator whose, which revenues are
378	used to support payments on principal and interest on bonds may,
379	shall not be limited.
380	(c)  Any liability of the state, its agencies, or its
381	subdivisions which arises out of this chapter is act shall be
382	subject to the provisions of s. 768.28.
383	(d)  Obtaining information as to the location of an
384	underground facility from the member operator as required by
385	this chapter act does not excuse any excavator from performing
386	an excavation or demolition in a careful and prudent manner,
387	based on accepted engineering and construction practices, and it
388	nor does not it excuse the such excavator from liability for any
389	damage or injury resulting from any excavation or demolition.
390	(e)  When an excavator knows or should know of the presence
391	of an underground facility of a nonmember small city as defined
392	in s. 120.52, he or she shall make reasonable efforts to contact
393	the small city that owns or operates that facility prior to
394	commencing an excavation or demolition.
395	(6)  The system does not have a duty to mark or locate
396	underground facilities and may not do so, and a right of
397	recovery does not exist against the system for failing to mark
398	or locate underground facilities. The system is not liable for
399	the failure of a member operator to comply with the requirements
400	of this chapter.
401	(7)(6)  An excavator who performs any excavation with hand
402	tools under pursuant to s. 556.108(4)(c) or (5) is liable for
403	any damage to any operator's underground facilities damaged
404	during such excavation.
405	Section 7.  Section 556.107, Florida Statutes, is amended
406	to read:
407	556.107  Violations.--
408	(1)  NONCRIMINAL INFRACTIONS.--
409	(a)  Violations of the following provisions are noncriminal
410	infractions:
411	1.  Section 556.105(1), relating to providing required
412	information.
413	2.  Section 556.105(6) 556.105(5), relating to the
414	avoidance of excavation.
415	3.  Section 556.105(11) 556.105(10), relating to the need
416	to stop excavation or demolition.
417	4.  Section 556.105(12) 556.105(11), relating to the need
418	to cease excavation or demolition activities.
419	5.  Section 556.105(5)(b) 556.105(4)(b) and (c) relating to
420	identification of underground facilities, if a member operator
421	does not mark an underground facility, but not if a member
422	operator marks an underground facility incorrectly.
423	(b)  Any excavator or member operator who commits a
424	noncriminal infraction under paragraph (a) may be issued a
425	citation by any local or state law enforcement officer,
426	government code inspector, or code enforcement officer
427	permitting agency inspector, and the issuer of a citation may
428	require an any excavator to cease work on any excavation or not
429	start a proposed excavation until there has been compliance with
430	the provisions of this chapter act. Citations shall may be hand-
431	delivered issued to any employee of the excavator or member
432	operator who is directly involved in the noncriminal infraction.
433	The citation shall be issued in the name of the excavator or
434	member operator, whichever is applicable.
435	(c)  Any excavator or member operator who commits a
436	noncriminal infraction under paragraph (a) may be required to
437	appear before the county court. The civil penalty for any such
438	infraction is $250 plus court costs, except as otherwise
439	provided in this section. If a citation is issued by a local law
440	enforcement officer, a local government code inspector, or a
441	code enforcement officer, 80 percent of the civil penalty
442	collected by the clerk of the court shall be distributed to the
443	local governmental entity whose employee issued the citation and
444	20 percent of the penalty shall be retained by the clerk to
445	cover administrative costs, in addition to other court costs. If
446	a citation is issued by a state law enforcement officer, the
447	civil penalty collected by the clerk shall be retained by the
448	clerk for deposit into the fine and forfeiture fund established
449	pursuant to s. 142.01. Any person who fails to appear or
450	otherwise properly respond to a citation issued pursuant to
451	paragraph (d) shall, in addition to the citation, be charged
452	with the offense of failing to respond to such citation and,
453	upon conviction, commits be guilty of a misdemeanor of the
454	second degree, punishable as provided in s. 775.082 or s.
455	775.083. A written warning to this effect shall be provided at
456	the time any citation is issued pursuant to paragraph (b).
457	(d)  Any person cited for an infraction under paragraph
458	(a), unless required to appear before the county court, may:
459	1.  Post a bond, which shall be equal in amount to the
460	applicable civil penalty plus court costs; or
461	2.  Sign and accept a citation indicating a promise to
462	appear before the county court.
463
464	The person issuing the citation officer may indicate on the
465	citation the time and location of the scheduled hearing and
466	shall indicate the applicable civil penalty.
467	(e)  Any person charged with a noncriminal infraction under
468	paragraph (a), unless required to appear before the county
469	court, may:
470	1.  Pay the civil penalty plus court costs, in lieu of
471	appearance, either by mail or in person, within 30 10 days after
472	the date of receiving the citation; or
473	2.  Forfeit bond, if a bond has been posted, by not
474	appearing at the designated time and location.
475
476	If the person cited follows either of the above procedures, she
477	or he is shall be deemed to have admitted to committing the
478	infraction and to have waived the right to a hearing on the
479	issue of commission of the infraction. The Such admission may be
480	used as evidence in any other proceeding under this chapter act.
481	(f)  Any person electing to appear before the county court
482	or who is required to appear shall be deemed to have waived the
483	limitations on the civil penalty specified in paragraph (c). The
484	court, after a hearing, shall make a determination as to whether
485	an infraction has been committed. If the commission of an
486	infraction has been proven, the court may impose a civil penalty
487	not to exceed $5,000 plus court costs. In determining the amount
488	of the civil penalty, the court may consider previous
489	noncriminal infractions committed.
490	(g)  At a hearing under this chapter, the commission of a
491	charged infraction must be proven by a preponderance of the
492	evidence.
493	(h)  If a person is found by the hearing official to have
494	committed an infraction, the such person may appeal that finding
495	to the circuit court.
496	(i)  Sunshine State One-Call of Florida, Inc., may, at its
497	own cost, retain an attorney to assist in the presentation of
498	relevant facts and law in the county court proceeding pertaining
499	to the citation issued under this section. The corporation may
500	also appear in any case appealed to the circuit court if a
501	county court finds that an infraction of the chapter was
502	committed. An appellant in the circuit court proceeding shall
503	timely notify the corporation of any appeal under this section.
504	(2)  MISDEMEANORS.--Any person who knowingly and willfully
505	removes or otherwise destroys the valid stakes or other valid
506	physical markings described in s. 556.105(5)(b) s. 556.105(4)(b)
507	and (c) used to mark the horizontal route of an underground
508	facility commits a misdemeanor of the second degree, punishable
509	as provided in s. 775.082 or s. 775.083. For purposes of this
510	subsection, stakes or other nonpermanent physical markings are
511	considered valid for 30 20 calendar days after information is
512	provided to the system under s. 556.105(1)(c).
513	Section 8.  Subsections (1), (4), and (5) of section
514	556.108, Florida Statutes, are amended to read:
515	556.108  Exemptions.--The notification requirements
516	provided in s. 556.105(1) do not apply to:
517	(1)  Any excavation or demolition performed by the owner of
518	a single-family residential property, not including property
519	that is subdivided or is to be subdivided into more than one
520	single-family residential property; or for such owner by a
521	member operator or an agent of a member operator when such
522	excavation or demolition is made entirely on such land, and only
523	up to a depth of 10 inches; provided due care is used and there
524	is no encroachment on any member operator's right-of-way,
525	easement, or permitted use.
526	(4)  Any excavation of 18 inches or less for:
527	(a)  Surveying public or private property by surveyors or
528	mappers as defined in chapter 472 and services performed by a
529	pest control licensee under chapter 482, excluding marked
530	rights-of-way, marked easements, or permitted uses where marked,
531	if provided mechanized equipment is not used in the process of
532	such surveying or pest control services and the surveying or
533	pest control services are is performed in accordance with the
534	practice rules established under s. 472.027 or s. 482.051,
535	respectively; or
536	(b)  Maintenance activities performed by a state agency and
537	its employees when such activities are within the right-of-way
538	of a public road; however, provided, if a member operator has
539	permanently marked facilities on such right-of-way, no
540	mechanized equipment may not be used without first providing
541	notification; or
542	(c)  Locating, repairing, connecting, adjusting, or routine
543	maintenance of a private or public underground utility facility
544	by an excavator, if the excavator is performing such work for
545	the current owner or future owner of the underground facility
546	and if mechanized equipment is not used.
547	(5)  Any excavation with hand tools by a member operator or
548	an agent of a member operator for:
549	(a)  Locating, repairing, connecting, or protecting, or
550	routine maintenance of, the member operator's underground
551	facilities; or
552	(b)  The extension of a member operator's underground
553	facilities onto the property of a person to be served by such
554	facilities.
555	(c)  The exemption provided in this subsection paragraphs
556	(a) and (b) is limited to excavations to a depth of 30 inches if
557	the right-of-way has permanently marked facilities of a company
558	other than the member operator or its agents performing the
559	excavation.
560	Section 9.  This act shall take effect October 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.