[Federal Register Volume 63, Number 41 (Tuesday, March 3, 1998)]
[Rules and Regulations]
[Pages 10347-10348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5380]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 194

[Docket No. PS-130; Amdt. 194-1]
RIN 2137-AD12


Pipeline Safety: Change in Response Plan Review Cycle

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Confirmation of effective date and correction of direct final 
rule.

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SUMMARY: This document confirms the effective date of the direct final 
rule that changes the reporting cycle for facility response plan 
submissions to five years for operators who are required to submit 
facility response plans to RSPA. Pipeline operators were previously 
required to submit facility response plans every three years. This 
document also corrects a citation contained in the Background section 
of the direct final rule, and addresses the comments that were 
submitted to RSPA by clarifying certain language.

DATES: The effective date of the direct final rule published on 
December 24, 1997, (62 FR 67292) is confirmed to be February 23, 1998. 
The effective date of the correction to the Direct Final Rule is 
February 23, 1998.

FOR FURTHER INFORMATION CONTACT: Jim Taylor, (202) 366-8860, or by e-
mail at [email protected], regarding the subject matter of this 
Notice; or the RSPA Dockets Unit, (202) 366-5046, for copies of the 
direct final rule or other information in the docket.

SUPPLEMENTARY INFORMATION:

Need for Correction

    In the direct final rule published in the Federal Register on 
December 24, 1997, (62 FR 67292), on page 67292, in the third column, 
the first sentence of third paragraph of the Background section 
incorrectly refers to 49 CFR 194.121(b). The sentence should refer to 
49 CFR 194.121(a).

Need for Clarification

    The procedures governing issuance of direct final rules are in 49 
CFR 190.339. These procedures provide for public notice and opportunity 
for comment subsequent to publication of a direct final rule. They also 
provide that unless an adverse comment or notice of intent to file an 
adverse comment is received within a specified comment period, the 
Administrator will issue a confirmation document advising the public 
that the direct final rule will either become effective on the date 
stated in the direct final rule or at least 30 days after the 
publication date of the confirmation. If an adverse comment or notice 
of intent to file an adverse comment had been received, RSPA would have 
issued a timely notice in the Federal Register to confirm that fact and 
withdrawn the direct final rule in whole or in part. According to the 
procedures, an adverse comment is one that explains why the rule would 
be inappropriate, including a challenge to the rule's underlying 
premise or approach, or would be ineffective or unacceptable without a 
change. A comment recommending a rule change in addition to the rule is 
not an adverse comment, unless the commenter states why the rule would 
be ineffective without the additional change.
    As discussed below, RSPA received two comments on the direct final 
rule. RSPA does not consider any of the comments to be adverse comments 
under the direct final rule procedures.
    Consequently, RSPA is publishing this document to confirm the 
effective date announced in the direct final rule.
    The California Department of Fish and Game's Office of Spill 
Prevention and Response and the American Petroleum Institute provided 
comments. Although both were supportive of the direct final rule in 
concept, both expressed concerns about application of the new rules.
    California suggested that RSPA should require operators to review 
their plans annually for any corrections, deletions, or additions, 
submitting minor changes to RSPA annually, and submitting substantive 
changes as soon as they occur. RSPA shares California's concerns and 
believes that it is prudent for operators to review their own plans 
periodically to ensure that the documents are current. Although RSPA is 
not adopting California's suggested requirement, RSPA will consider it 
for a future rulemaking later this year.
    The American Petroleum Institute (API) commented that the five-year 
cycle should commence on the date RSPA approves a response plan, 
whenever that takes place. RSPA agrees, and applies this rule to 
``significant and substantial harm'' facilities. However, RSPA believes 
the plan review cycle for facilities designated as ``substantial harm'' 
commences on the date of the most recent plan submission based on the 
fact that RSPA does not issue approvals for ``substantial harm'' 
facilities. RSPA will clarify when it issues the final rule for 49 CFR 
part 194 later this year. API also identified a typographical error in 
a regulatory citation. RSPA has corrected the error. API commented that 
they believed that there is no current requirement for substantial harm 
facilities to submit plans. RSPA disagrees, and has left the reference 
intact.
    In response to comments received, RSPA provides the following 
specific clarifications:
    1. As proposed, Sec. 194.121(a) indicates that response plans 
should be submitted five years from the date of submission of these 
plans to RSPA. To clarify, plans for facilities designated as 
``substantial harm'' facilities should be submitted based on the most 
recent date of submission of the plans to RSPA, rather than on the date 
of approval, because ``substantial harm'' facilities have not been 
issued an approval date by RSPA. However, plans for facilities 
designated as ``significant and substantial harm'' should be submitted 
based on the most recent approval date issued by RSPA. RSPA will 
clarify when it issues the final rule for 49 CFR part 194, subpart B is 
issued later this year.
    2. On page 67292, in the third column, the last sentence of fourth 
paragraph under the Background section states: ``Although the current 
three-year cycle for all plans is ending, when this rule becomes 
effective there will be no requirement to resubmit existing plans until 
two years from now.'' This sentence could be interpreted to require an 
operator whose plan was approved in 1997 to resubmit the plan again in 
two years, and every five years thereafter. This is not the intent of 
RSPA. RSPA's intent is that if an operator's plan was approved in 1997, 
the next submission would not be required until 2002, five years from 
the plan's approval date.
    3. The Federal Water Pollution Control Act (FWPCA) (33 U.S.C. 1251-
1387) specifies that response plans must be submitted for onshore 
facilities that ``because of (their) location, could reasonably be 
expected to cause substantial harm to the environment,'' as well as for 
facilities that ``could reasonably be expected to cause significant and 
substantial harm to the environment * * *'' (33 U.S.C. 
1321(j)(5)(B)(iii) and 1321(j)(5)(D)).

[[Page 10348]]

RSPA believes that all operators of onshore oil pipelines are required 
to submit facility response plans under 49 CFR part 194, but has 
decided to review and approve only those plans designated by the 
operators as posing a threat of ``significant and substantial harm to 
the environment.''

    Issued in Washington, DC on February 25, 1998.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 98-5380 Filed 3-2-98; 8:45 am]
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